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ELEMENTS 


Ecclesiastical  Law. 

COMPILED   WITH   REFERENCE  TO 

THE    SYLLABUS,    THE  "CONST.    APOSTOLICAE   SEDIS "    OF   POPE 

PIUS    IX.,    THE    COUNCIL    OF    THE    VATICAN    AND 

THE    LATEST    DECISIONS    OF    THE 

ROMAN  CONGREGATIONS. 


ADAPTED  ESPECIALLY  TO  THE  DISCIPLLNE  OF   THE   CHURCH    IN   THE 

UNITED  STATES. 


REV.  S.  B.  SMITH   D.D., 

FOR.MERLY   PROFESSOR  OF    CANON  LAW,    AUTHOR  OF    "NOTES," 
"COUNTER   POINTS,"  ETC. 


p  ,:<:  h  Vol.  II. 

I    ECCLESIASTICAL    TRIALS. 

Ithe  abbey  of 


NEW  f  <: 

CINCINNATI,  ST,  LOUIS,  AND  EINSIEDELN  : 

BEI^ZIGEE    BROTHEES, 

PKINTERS  TO  THE  HOLY  APOSTOLIC  SBE. 
1882. 


6 


^^(,§01 


LOAN  STACK 

^W.  M.  WIGGER, 

Episcopus  Novarcensis. 


Datum  Nov/.rc/e, 

Die  25   AuGUSTi,  1S82. 


Copyright,  1882,  by  Benziger  BROTHERS. 


3S^ 


/VlMi^ 


Diocese  of  Newark, 

y«/y  1 8,  1882. 
Rev.  dear  Doctor: 

I  have  tarefully  read  the  proof-sheets  of  the  second  book 

of  your  "  Elements  of  Canon  Law,"  and  I  consider  it  a  work  on 

which  you  have  spent  vast  labor  and  research.     I  do  not,  indeed, 

agree  with  you  in  all  your  deductions  and  conclusions.    However, 

I  consider  your  book  one  of  great  merit,  and,  as  in  doubtful 

matters  we  are  allowed  each  to  hold  hi^  own  opinion,  I  cheerfully 

give  my  permission   to  publish  the   work,   and  wish  it  from  my 

heart  all  the  success  that  you  yourself  could  expect. 

With  great  esteem,  I  remain, 

Yours  very  sincerely, 

t  W.  M.  WIGGER, 

Bishop  of  Newark. 


619 


PREFACE. 


/  It  is  now  over  five  years  since  we  published  the  first  vol- 
ume of  these  Elements.  The  reader  will  naturally  ask  himself 
why  we  should  have  allowed  so  long  a  time  to  elapse  before 
issuing  the  second  volume.  Our  chief  excuse  is  the  difficulty 
of  the  task.  There  are  perhaps  not  many  persons  who  have 
an  idea  of  the  arduous  nature  of  our  undertaking.  Canon- 
ists all  agree  that  the  matter — ecclesiastical  judicature — of 
which  the  present  volume  treats  is  by  far  the  most  difficult 
and  complicated  portion  of  all  ecclesiastical  law.  Schmalz- 
grueber'  says:  "  Est  hie  liber"  (the  second  book  of  the  decret- 
als of  Pope  Gregory  IX.,  which  treats  of  ecclesiastical  trials) 
omnium  aliorum  librorum  juris  canonici  difficillimus,  et 
maxime  utilis." 

This  difficulty  is  heightened,  in  our  case,  by  the  peculiar 
circumstances  under  which  we  write.  Ecclesiastical  trials 
in  criminal  and  disciplinary  causes  of  ecclesiastics  are  to  be 
conducted  in  the  United  States  in  the  manner  laid  down  by 
the  Instruction  of  the  Sacred  Congregation  de  Propaganda 
Fide,  issued  July  20,  1878.  This  Instruction  authorizes  cer- 
tain departures  from  the  prescriptions  of  the  sacred  canons 
concerning  ecclesiastical  trials.  It  permits  a  simpler,  easier, 
and  less  intricate  mode  of  procedure.  Yet  it  gives  but  the 
general  features  of  the  proceedings.  Now,  what  are  the 
principles  which  must  guide  the  ecclesiastical  judge  and  the 
canonist  m  filling  up  this  sketch  or  outline?  Evidently  no 
others  than  those  which  are  contained  and  embodied  in  the 

'  Lib.  2,  Prooem. 


6  Preface. 

sacred  canons,  the  decrees  of  oecumenical  councils,  and  the 
constitutions  of  the  supreme  pontiffs,  as  interpreted  and  ap- 
plied by  the  approved  canonists  of  every  age  and  every 
clime. 

The  common  law  of  the  Church — and  we  mean  not  merely 
its  letter,  but  also  its  spirit — must  therefore  be,  so  to  say,  the 
mirror  before  which  our  peculiar  mode  of  procedure  must 
be  placed,  considered,  and  studied.  This  mirror  alone  fur- 
nishes the  correct  key  of  the  Instruction.  Hence,  throughout 
this  volume,  the  peculiar  trial  as  prescribed  for  this  country 
by  the  Instruction  of  July  20,  1878,  is  everywhere  and  in  all 
its  details  compared  with  the  canonical  trial  as  established 
by  the  sacred  canons.  The  points  of  agreement  as  well  as 
of  divergence  between  the  one  and  the  other  are  carefully 
pointed  out  and  explained. 

The  present  volume  is  divided  into  two  Parts.  The  first 
treats  of  ecclesiastical  trials  in  general :  namely,  of  the  judicial 
power  of  the  Church ;  of  the  personnel  of  ecclesiastical  courts ; 
of  the  judge  and  our  Commissions  of  Investigation  ;  of  plain- 
tiffs and  defendants,  procurators  and  advocates ;  of  the  nature, 
various  kinds,  and  force  of  judicial  proofs.  The  Second  Part 
discusses  ecclesiastical  trials  in  particular — that  is,  chiefly  the 
various  stages  and  formalities  of  ecclesiastical  trials,  both 
ordinary  and  extraordinary,  civil  and  criminal,  and  matri- 
monial. Particular  attention  is  paid  everywhere  to  our  form 
of  trial,  and  it  is  explained  in  all  its  details. 

We  are  happy  to  call  attention  to  the  fact  that  their 
Eminences  Cardinal  Manning  and  Newman,  the  greatest 
lights  of  the  Church  in  England  at  the  present  day,  have 
been  graciously  pleased  to  approve  of  the  first  volume  of 
this  work./ 

S.  B.  S. 

St.  Joseph's  Church,  Paterson,  N.  J., 
Feast  of  the  Assumption  of  the  Blessed  Virgin,  1882. 


BOOK  11. 

ON  ECCLESIASTICAL  JUDICATURE,  OR 
OF  JUDICIAL  PROCEEDINGS,  CIVIL 
AND  CRIMINAL,  IN  ECCLESIASTICAL 
COURTS. 

{DE  JUDICIIS  ECCLESIASTICIS.) 


685.  We  shall  divide  this  book  into  two  parts:  the  first 
will  treat  of  ecclesiastical  judicature  in  general ;  the  second 
will  discuss  the  same  subject  in  particular. 

PART  I. 

OF  ECCLESIASTICAL  JUDICIAL    PROCEEDINGS, 
CIVIL  AND   CRIMINAL,  IN  GENERAL. 

686.  Under  this  heading  we  shall  speak  of  the  nature 
and  various  kinds  of  judicial  proceedings ;  of  the  various 
persons  intervening  at  them,  namely,  of  the  judge,  plaintiff 
and  defendant,  procurators  and  advocates;  of  the  compe- 
tency of  the  court;  and  of  judicial  proofs./ 

CHAPTER   I. 

WHAT   IS   MEANT   BY  JUDICIAL  PROCEDURES  OR  TRIALS  AND 
HOW   MANY   KINDS   ARE   THERE? 

687.  Nature  of  judicial  proceeditigs.  In  every  trial  or 
forensic  procedure  there  must  be  i,  a  decision  {sententid), 
regarding  (a)  a  thing  ires)  or  right  {jus)  belonging  to  a  per- 
son, or  (b)  a  punishment  incurred  by  him  according  to  law. 
Hence  all  trials'  or  processes  consist  in  the  application  of  the 


8  What  is  Meant  by  Judicial  Procedures  f 

law  to  the  fact.  Therefore  each  trial  or  process  resolves 
itself  into  a  syllogism,  of  which  the  major  is  the  nature  of 
the  law  applying  to  the  case ;  the  minor  the  fact  to  which 
the  law  is  to  be  applied,  the  conclusion,  the  sentence  of  the 
court  or  judge.'  From  this  it  will  also  be  seen  that  the  sub- 
ject-matter of  trials  or  judicial  proceedings  is  essentially  only 
a  litigious  matter.  In  other  words,  only  questions  or  matters 
of  law,  about  which  two  parties  dispute, — v.g.,  how  far  a 
person  is  entitled  to  some  right  or  liable  to  some  punish- 
ment,— can  form  the  subject-matter  of  judicial  proceedings. 
Hence  questions  that  are  merely  theoretical  or  speculative 
or  scientific — v.g.,  whether  the  sun  moves — cannot  be  the 
object  of  trials.^ 

688.  2.  A  judge  {judex)  or  a  person  lawfully  appointed  to 
pronounce  the  sentence  or  give  the  decision,  and,  moreover, 
vested  with  power  to  execute  it,  that  is,  possessed  of  juris- 
diction in  foro  cxtc7'no^  From  this  it  will  be  seen  that  every 
judge  proper  has  the  power  not  only  to  pronounce  sentence 
{potestas  judicandi,  notid),  but  also  to  enforce  it  by  penalties. 
We  observe,  however,  with  Devoti,^  that  this  coercive  power 
is  not  always  attached  to  the  potestas  judicandi  or  notio;  for 
there  are  judges — v.g.,  arbitrators — who  have  only  the  notio, 
that  is,  merely  the  power  to  render  a  decision,  but  not  to 
enforce  it.  However,  these  are  judges  only  in  a  broad  sense. 
Perhaps  it  might  be  said  that  members  of  Commissions  of  In- 
vestigation in  England  and  the  United  States  may,  in  a  similar 
broad  sense,  be  called  judges.  We  say  "  in  a  similar  broad 
sense,"  but  not  "in  the  same  broad  sense";  for  although 
these  commissioners  have  exclusive  charge  of  the  trial,  or 
hearing  of  the  case,  their  sentence  or  opinion,  unlike  that  of 
arbitrators,  is  only  consultative,  and  not  binding  upon  the 
bishop,  who  alone  can  pronounce  and  enforce  the  final 
sentence.) 

'  Salzano,  vol.  iv.  p.  19.  "^  Miinchen,  Canonical  Trials,  vol.  i.  p.  6. 

■''  Craiss.,  n.  5476.  ••  Lib.  iii.,  tit.  ii.,  §  3;  and  tit.  xvii.,  §  5. 


What  z's  Meant  by  Judicial  Procedures  ?  9 

689.  3.  A  plaintiff  or  quasi-plaintiff  {actor,  quasi-actor,  ac- 
ciisator,  dcnuntiator),  namely,  the  person  who  sues  or  prose- 
cutes— i.e.,  demands  that  justice  be  done  him,  or  a  due 
punishment  inflicted  upon  another.  This  plaintiff  must  be  a 
distinct  person  from  that  of  the  judge,  according  to  the 
axiom :  "  Nemo  potest  esse  simul  accusator  et  judex."    How-  ^ 

ever,  the  judge  can,  upon  rumor  or  fame  reaching  him  of 
the  commission  of  a  crime,  summon  before  his  tribunal  the 
parties  whom  fame  charges  with  the  deed,  and  if  upon  due 
trial  he  finds  them  guilty,  pronounce  sentence.  In  this  case, 
common  fame  {fama  communis)  itself  supplies  the  place  of 
the  plaintiff,  in  fact,  is  considered  the  plaintiff,  as  Pope  Inno- 
cent III.  says:  "  Non  tanquam  idem  sit  accusator  et  judex, 
scd  quasi  deimntiautc  fama,  vcl  defcrcnte  clamored  *  But  in  no 
case  can  the  judge  proceed  merely  on  his  own  private  knowl- 
edge of  the  offence.^  Hence,  as  Schmalzgrueber^  says,  in 
every  trial  there  must  be  a  plaintiff,  distinct  from  the  judge,  ■ 
either  in  a  literal  or  at  least  metaphorical  sense. 

•  690.  4.  A  defendant  (reus),  namely,  a  person  of  whom 
something  is  demanded  or  upon  whom  it  is  asked  that  a  pun- 
ishment shall  be  inflicted. 

691.  5.  Finally,  it  is  necessary  that  the  case  be  discussed 
or  argued  {causae  disceptatio) — i.e.,  that  the  plaintiff  submit  his 
proofs,  and  the  defendant  be  allowed  to  defend  himself./ 

692.  This  is  all  that  is  required  by  the  law  of  nature  for 
trials  or  judicial  proceedings,  ecclesiastical  or  secular.  All 
other  formalities  isoleinnitates  Judicii),  even  prescribed  on 
pain  of  nullity,  are  necessary  not  because  of  the  nature  of 
processes,  but  solely  from  positive  law.  To  understand  this 
better,  it  must  be  borne  in  mind  that,  so  far  as  their  sub- 
stance or  essential  elements  are  concerned,  trials  hold  of  the 
law  of  nature  itself  and  are  based  upon  it.  For,  considering 
the  state  of  fallen  human  nature,  litigations  must  frequently 

'  Cap.  Qualiter  et  quando  24,  De  accusal,  (v.  i).  '  Craiss.,  n.  5478. 

^  Lib.  2,  tit.  I,  n.  16. 


lo  What  is  Meant  by  Judicial  Procedures  ? 

occur.  It  is  therefore  indispensable  that  there  should  be 
certain  persons  who  can,  in  such  cases,  put  an  end  to  dis- 
putes and  give  each  one  his  due.  Now,  evidently,  this  cannot 
be  done  by  the  contending  parties  themselves,  nothing  being 
more  repugnant  to  right  reason  than  that  a  person  should 
be  judge  in  his  own  cause.  Hence  it  is  necessary  that  tri- 
bunals or  courts  be  established  by  public  authorit}'-  for  the 
adjudication  and  settlement  of  causes. 

693.  We  said,  so  far  as  the  substance  or  essential  elements  of 
trials  are  concerned;  for  the  mode  of  conductir.g  trials — that 
is,  the  various  formalities  {sole^nnitates  judicii) — have  been 
established  by  human  positive  law.  Hence,  as  we  have 
already  seen,  the  demand  of  the  plaintiff,  the  citation  of  the 
defendant,  the  discussion  of  the  cause, — i.e.,  the  submitting  of 
proofs  by  the  plaintiff,  and  the  defence  by  the  defendant,  the 
sentence  of  the  judge, — are  required  by  the  natural  law  to 
constitute  a  trial.  For  they  pertain  to  the  substance  of  trials, 
and  are  of  such  a  nature  that  without  them  the  cause  could 
not  be  properly  tried.  The  various  other  formalities,  as  we 
have  shown,  owe  their  origin  to  positive  human  law.^  In 
the  beginning  trials  or  judicial  proceedings  were  naturally 
informal.  But  as  suits  or  litigations  grew  more  numerous, 
it  became  necessary  to  establish  a  certain  fixed  mode  or 
order  of  proceeding  in  these  discussions  or  trials.  This 
order  or  method  of  procedure  in  a  particular  case  is  styled 
process  or  trial,  which  may  be,  as  we  shall  see,  either  eccle- 
siastical or  secular.'/ 

694.  From  what  has  been  said,  it  follows:  i.  A  trial  or  pro- 
cess, considered  in  its  essential  elements, — i.e.,  those  which,  as 
we  have  seen,  are  required  by  natural  law, — is,  properly  speak- 
ing, defined  to'  be  "the  sentence  of  the  judge  in  regard  to 
the  demand  of  the  plaintiff  against  the  defendant,  pronounced 
after  due  discussion  or  argument  of  the   case."'     Viewed 

'  Schmalzg.,  lib.  2,  t.  i,  n.  4.        '  Salzano,  vol.  iv.,  p.  19.        ^  Craiss.,  n.  5481. 


What  is  Meant  by  Judicial  Procedures  f  1 1 

with  regard  to  the  formalities  established  by  positive  law,  a 
process  or  trial  is  "  the  sentence,  etc.,  pronounced  by  the 
judge,  after  the  case  has  been  argued  or  tried,  according  to 
the  nietJiod  prescribed  by  lawy  *  2.  In  no  trial  or  judicial 
proceedings  (and  this  holds,  as  a  matter  of  course,  also  of 
ecclesiastical  trials ;  for  we  are  now  speaking  in  general  of 
eccfesiastical  and  secular  trials),  even  though  only  summary, 
can  those  things  be  omitted  which  form  the  substance  of 
trials.  For  they  are  based  upon  the  natural  law,  against 
which  no  custom  can  prevail."  3.  Supreme  rulers  (the  Pope 
for  the  Church)  can  personally  or  through  others  omit  those 
formalities  of  trials  which  are  prescribed  by  positive  law, 
but  not  those  which  derive  from  the  law  of  nature. 

695.  Every  trial  or  process,  as  we  shall  see  further  on, 
may  be  said  to  have  three  stages :  the  beginning,  the  middle, 
and  the  end  ;  that  is,  the  introduction  of  the  cause  into  court, 
the  trial  proper,  or  hearing  of  the  argument  of  plaintiff  and 
defendant ;  the  sentence.V 

696.  Division. — Trials  or  judicial  proceedings  are  divided 
chiefly,  i,  into  ecclesiastical  and  secular.  An  ecclesiastical 
trial  {processtis  caiionicjis,  judicium  ecclesiasticuni)  is  that  which 
takes  place  before  the  ecclesiastical  judge  as  such,  and  is 
defined  to  be  "  the  sentence  which  the  ecclesiastical  judge 
passes  on  a  demand  or  accusation  made  by  the  plaintiff 
against  the  defendant,  after  the  case  has  been  duly  argued 
before  him,  in  the  manner  and  form  presented  by  the  law  of 
the  Church."  This  "  manner  and  form,"  or  the  formalities 
prescribed  by  the  common  law  of  the  Church  for  ecclesias- 
tical trials,  are  given  in  detail  in  the  second  book  of  the 
Decretals.  The  mode  of  conducting  ecclesiastical  trials  in 
the  United  States,  in  disciplinary  and  criminal  causes  of 
ecclesiastics,  is  laid  down  in  the  Instruction  of  the  S.  C. 

'  Cf.  Ferraris,  v.  Judex,  Novae  add.,  n.  i. 

*  Schmalzg.,  1.  c,  n.  4.  3  Craiss.,  n.  5483,  nota  I. 


1 2  What  is  Meant  by  ytidicial  Procedures  ? 

de  P.  F.,  dated  July  20,  1878,  concerning  Commissions  of 
Investigation,  and  differs,  as  we  shall  see  in  the  course  of 
this  work,  in  certain  respects,  from  that  prescribed  by  canon 
law  or  the  common  law  of  the  Church.  Secular  trials  are 
those  which  are  presided  over  by  the  secular  judge  or  magis- 
trate as  such.' 

697.  2.  Into  civil  and  criminal.  Criminal  trials  are  those 
where  crimes  are  punished ;  civil,  where  there  is  question, 
not  of  punishing  offences,  but  of  deciding  other  disputes.* 
This  division  applies  to  ecclesiastical  as  well  as  secular  trials. 
Further  on  we  shall  describe  more  fully  the  nature  of  crimi- 
nal and  civil  trials  in  ecclesiastical  courts. 

698.  3.  Into  ordinary  {judicium  or  dinar  ium,  solcnme,plc)ia- 
rium),  where  all  the  formalities  prescribed  by  law  are  ob- 
served ;  and  extraordinary  {processus  summarius,  judicium 
extraor dinar iuvi),  where  many  of  the  formalities  ordained 
solely  by  positive  law  can  be  omitted.  We  say,  by  positive 
law ;  for  those  which  are  required  by  the  law  of  nature  must 
be  retained  even  in  summary  trials. V 

699.  4.  Into  petitory  and  possessory.  Petitory  trials  or 
processes  {judicium  pctitoriuni)  are  those  where  there  is  ques- 
tion (a)  of  the  ownership  {proprictas  rei,  as  distinguished 
irom  possessio  rei) — i.e.,  just  title  or  claim  to  a  thing,  v.£^.,  to  a 
field,  an  ecclesiastical  benefice  or  office,  the  right  of  election; 
(b)  or  of  some  right  i/i  re  or  ad  rem,  v.g.,  the  right  resulting 
from  a  mortgage  or  other  security  or  pledge  given,  or  from 
heirship.  Possessory  trials,  on  the  other  hand,  are  those  in 
which  the  parties  contend  solely  about  obtaining,  retaining, 
or  recovering  possession  of  a  certain  object  {res)  or  right  {jus). 
The  difference  therefore,  between  petitory  and  possessory 
trials  is  that  in  the  former  the  plaintiff  asks  that  his  title  or 
claim  be  declared  valid  or  just ;  in  the  latter,  he  merely  de- 

•  Reiflf.,  lib.  2,  t.  i,  n.  34.  *Our  Counter-Points,  n.  55,  56. 

»  Reiff.,  1.  c.  n.  41. 


What  is  Meant  by  Judicial  Procedures  f  13 

mands  possession  of  the  object  or  right,  or  that  he  be  not 
disturbed  in  his  quiet  possession,  or  that  the  object  having 
been  lost  by  or  taken  from  him,  be  restored  to  him.' 

700.  5.  Into  those  of  the  first  and  second  instance  {jiidicis 
primae  et  secundae  instantiae),  according  as  it  is  allowed  to 
appeal  to  a  higher  tribunal  or  not." 

701.  6.  Into  trials  bonae  fidei  2ccidi  stricti  juris.  A  trial  is 
bonae  fidei  when  the  law  allows  the  judge  a  certain  equitable 
discretionary  power  in  determining  what  is  due  to  the  plain- 
tiff. It  is  stricti  juris  when  the  law  does  not  give  the  judge 
this  power,  but  obliges  him  to  confine  himself,  in  his  sentence, 
strictly  to  what  the  parties  have  submitted,  or  what  is  speci- 
fied in  the  law  in  regard  to  the  matter  under  dispute.  All 
those  trials  or  actions  which  are  bd7tae  Jidei  are  enumerated 
in  the  Roman  law.V 

'  Schmalzg.,  lib.  2,  t.  12,  n.  30.  *  Craiss.,  n.  5489. 

'  §§  28,  29,  30.  Instit.  De  Actionibus. 


CHAPTER   II. 

HAS  THE  CHURCH  A  JUDICIARY  POWER  IN  THE  STRICT  SENSE? 
WHAT   IS   ITS   EXTENT? 

\  702.  Protestants  contend  that  the  Church  is  but  a  cor- 
poration or  imperfect  society,  not  a  perfect  society  or  Sov- 
ereign State  ;  that  she  has  only  the  power  of  suasion,  not  of 
external  jurisdiction,  and  is  therefore  possessed  of  no  judi- 
ciary power  proper.  It  is  moreover  falsely  asserted  by  man}-, 
that  what  judiciary  power  the  Church  has  ever  exercised, 
she  has  done  so  only  by  consent  of  the  secular  power. 

703.  Against  these  and  other  errors  of  a  similar  kind  we 
lay  down  the  following  proposition  :  "  The  Church  is  pos- 
sessed of  an  external  forum  for  the  exercise  of  judicial  power, 
properly  so  called."  What  is  to  be  proved  here  is  not  pre- 
cisely the  power  to  make  definitions  of  faith,  or  enact  disci- 
plinary laws  binding  on  all  the  faithful,  or  even  the  judiciary 
power  inforopoenitentiae;  but  that  the  Church  can  establish 
courts  or  tribunals  of  its  own,  where  judges  appointed  by  it 
have  power  to  try  and  pass  sentence  upon  certain  ecclesias- 
tical causes  in  such  a  manner  that  persons  accused  or  sued 
are  bound  even  in  conscience  to  appear  before  them  (if  prop- 
erly cited),  and  may  be  compelled  by  the  judge,  both  by 
censure  and  temporal  penalties,  to  appear  and  undergo  the 
sentence  pronounced  against  them./ 

704.  We  will  now  prove  our  thesis :  first,  from  theological 
reason ;  next,  from  S.  Scripture  ;  finally,  from  the  practice  of 
the  Church.  The  argument  from  reason  is  as  follows :  We 
have  already  shown  that  the  Church,  being  a  supreme,  per. 
feet,  and  independent  society,  and  not  a  mere  corporation,  is 


Has  the  Church  a  Judiciary  Power  9  15 

vested  with  power  to  make  laws  obligatory  on  all  its  members, 
and  also  the  power  to  enforce  them,  even  by  punishments/ 
Now  these  very  powers  necessarily  include  another,  a  third, 
namely,  the  judiciary  power,  which  forms  at  once  the  natural 
outgrowth  of  the  legislative  power  and  the  necessary  condi- 
tion of  the  coercive.'  We  say,  first,  the  natural  outgrowth  of 
the  legislative  power ;  for  the  latter  would  be  imperfect  and 
useless  if  it  did  not  include  the  judiciary  power — i.e.,  the 
power  to  apply  and  enforce  the  law  in  a  particular  case, 
whenever  a  dispute  arises  as  to  its  meaning  and  application. 
We  say,  secondly,  and  the  necessary  condition  of  the  coercive ; 
for,  when  there  is  question  of  inflicting  an  ecclesiastical  pun- 
ishment, the  following  mode  of  procedure,  flowing  as  it  does 
from  the  very  nature  of  the  case,  must  evidently  be  observed. 
The  offence  must  be  first  brought  to  the  notice  of  the  eccle- 
siastical superior ;  the  latter  must  then  obtain  certainty  as  to 
whether  it  has  been  committed  or  not.  In  other  words,  the 
offence  must  be  proved  ;  consequently  the  defence  as  well 
as  the  prosecution  must  be  heard.  Then  only  can  sentence 
be  justly  passed  and  punishment  inflicted  on  the  delinquent. 
Therefore  the  exercise  of  the  coercive  power  can  be  just 
only  when  it  is  preceded  by  the  exercise  of  the  judicial 
power.*  In  other  words,  punishments  are  as  a  rule  unjust, 
when  imposed  without  a  previous  trial.  For,  as  we  have 
seen,  trials,  so  far  as  concerns  their  substantial  parts,  hold  of 
the  very  law  of  nature.  That  is,  natural  law  itself  ordains 
that,  as  a  rule,  no  punishment  shall  be  inflicted  except  upon 
due  observance  of  the  substantial  formalities  of  trials./ 

705.  The  Sacred  Scriptures  also  show  that  the  Church  is 
vested  with  judicial  power.  Thus,  our  Lord,  in  laying  down 
the  rule  that  a  deliquent  should  be  first  reproved  privately, 
and  next  before  witnesses,  adds  :  **  If  he  will  not  hear  them, 

*  Supra,  n.  183-186  and  201-204.       ^  Fessler,  The  Canonical  Trial,  p.  9. 

*  Fessler,  1.  c. ;  Bouix,  De  Jud.,  vol.  i.,  p.  31. 


1 6  Has  the  Church  a  Judiciary  Pozucr? 

tell  the  Church" — i.e.,  the  rectors  or  superiors  of  the  Church  ; 
"  and  if  he  will  not  hear  the  Church,  let  him  be  to  thee  as  the 
heathen  and  the  publican  ;" '  that  is,  let  him  be  cut  off  from 
the  Church,  or  excommunicated,  and  considei-ed  as  excom- 
municated. Here,  then,  the  Church  is  given  the  power  to 
excommunicate.  This  is  placed  beyond  doubt  by  the  verse 
immediately  succeeding :  "  Amen,  I  say  to  you,  whatsoever 
you  shall  bind  upon  earth,  shall  be  bound  also  in  heaven."" 
For,  as  the  illustrious  Bishop  Fessler,'  Secretary  to  the  Va- 
tican Council,  explains,  the  phrase  "  to  bind  "  means  the  same 
as  to  excommunicate  or  punish.  Now,  as  we  have  seen, 
ecclesiastical,  no  less  than  secular  punishment,  can,  as  a  rule 
at  least,  be  justly  inflicted  only  when  a  trial  or  hearing  of  the 
cause  has  preceded.  Hence  the  power  to  excommunicate  or 
punish  necessarily  presupposes  the  right  and  duty  to  hear  or 
try  the  cause.  In  fact,  in  the  above  quotation  from  Sacred 
Scripture  we  have  all  the  essential  elements  of  a  trial  or  judi- 
cial proceeding,  namely,  the  judge,  the  accuser,  the  accused, 
the  hearing  or  argument,  the  sentence  and  its  execution.*  / 

706.  Again,  to  continue  the  argument  from  Sacred  Scrip- 
ture, St.  Paul  threatens  to  come  to  the  Corinthians  "  with  a 
rod,"^  and  expressly  tells  them  that  he  has  power  to  punish 
all  disobedience,  when  he  says :  "  Having  in  readiness  to  re- 
venge disobedience."  *  In  fact,  he  made  full  use  of  this  power 
in  passing  sentence  of  excommunication  upon  the  incestuous 
Corinthian,^  and  Hymeneus,  and  Alexander."  Now,  as  was 
already  observed,  the  power  to  punish  necessarily  presup- 
poses the  judicial  power — that  is,  the  power  to  hear  the 
cause,  or  to  ascertain  by  a  trial  whether  the  offence  has  been 
committed  or  not.  We  observe  here,  by  the  way,  that  the 
case  of  the  incestuous  Corinthian,  being  notorious,  needed 
no  further  investigation  or  trial,  prior  to  sentence.'     Finally, 

'  Matth.  xviji.  17.         '  lb.,  v.  18.         ^1.  c,  p.  12.         *  Cf.  Bouix,  1.  c.  p.  30. 

*  I  Cor.  iv.  21.  *  2  Cor.  x.  6.      ■"  i  Cor.  v.  3,  sq. 

*  1  Tim.  i.  19,  20,  '  Fessler,  1.  c,  p.  14, 


Has  the  Chiirch  a  yitdiciary  Power?  17 

St.  Paul  tells  his  beloved  Timothy,  Bishop  of  Ephesus, 
Against  the  priest  receive  not  an  accusation,  but  under  two  or 
three  xvitnesses.^  Here  we  have  all  the  essential  elements  of  a 
trial :  the  accused ;  the  judge,  in  the  person  of  Timothy  ;  the 
hearing  of  the  cause,  as  indicated  by  the  deposition  of  the 
witnesses,  etc.  St.  Paul,  moreover,  points  out  how  trials 
are  to  be  begun.^ 

707.  The  practice  of  the  Church  confirms  our  thesis.  As 
a  matter  of  fact,  the  Church  exercised  this  judicial  power 
from  the  very  beginning.  We  have  already  seen  the  action 
of  St.  Paul.  Space  permits  us  to  mention  but  one  more  in- 
stance. Toward  the  end  of  the  second  century  Montanus 
began  to  broach  his  heresy.  Several  synods  were  held,  in 
which  his  teaching  was  carefully  examined  and  found  to  be 
heretical.  Thereupon  sentence  was  passed  upon  him  and 
his  adherents,  cutting  them  off  from  the  Church.  Here, 
then,  we  have  all  the  essential  constitutive  parts  of  a  trial, 
the  sentence  being  preceded  by  a  careful  investigation  or 
hearing  of  the  cause.^ 

708.  From  what  has  been  said,  we  infer:  i.  The  Church  is 
clothed  with  judicial  power  proper;  that  is,  she  can  have 
tribunals  of  her  own,  to  hear  or  try  causes,  before  giving  de- 
cisions or  inflicting  punishments.  2.  Consequently,  she  can 
compel  persons,  even  by  penalties,  to  appear  before  her  tri- 
bunals and  obey  the  sentence  of  her  courts.  Otherwise  her 
judicial  power  would  be  useless.  3.  Thisjudicial  power  was 
given  her,  not  by  secular  rulers,  but  by  God  Himself.  In 
fact,  St.  Paul,  in  passing  sentence  upon  the  incestuous  Corin- 
thian, expressly  states  that  he  does  so  ivith  the  power  of  our 
Lord  Jesus,*  or  as  he  elsewhere  says,  accordiitg  to  the  power 
which  the  Lord  hath  given  me!'  \ 

709.  Here,  in  conclusion,  it  may  be  asked,  what  causes 

'  I  Tim.  V.  ig.  *  Fessler,  1.  c,  p.  15.  ^  Fessler,  1.  c,  p.  17. 

^  I  Cor.  V.  4.  *  2  Cor.  xiii.  10. 


1 8  Has  the  Church  a  Judiciary  Power  ? 

pertain  to  the  ecclesiastical  forum  ?  For  the  answer,  we  re- 
fer to  n.  204-207,  and  to  n.  478.  From  the  principles  there 
laid  down,  it  follows  that  among  other  causes  those  fall  under 
the  ecclesiastical  judicial  forum  which  relate  to  the  appoint- 
ment of  prelates  or  inferior  ecclesiastics  ;  the  conferring  of 
orders ;  religious  profession ;  the  validity  of  marriages  or 
betrothals ;  certain  crimes,  such  as  heresy,  apostasy,  schism, 
simony,  and  the  like ;  the  rights  and  duties  of  ecclesiastics,  as 
such ;  etc.*  | 

'  Cf.  Schmalzg.,  1.  c,  n.  6. 


CHAPTER   III. 

OF    THE   VARIOUS    PERSONS    WHO    USUALLY    TAKE    PART    IN 
TRIALS   OR  JUDICIAL   PROCEEDINGS. 

\  710.  The  principal  persons  who  necessarily  take  part  in 
a  trial,  and  without  whom  there  can  be  no  trial,  are  the 
judge  {Judex),  the  plaintiff  or  accuser  {actor,  accusator),  and 
the  defendant  {reus).  The  other  persons  who  usually  inter- 
vene either  assist  (a)  the  contending  parties,  as  advocates, 
procurators  or  agents,  and  witnesses,  or  (b)  the  judge;  as 
assessors  and  counsellors,  auditors  and  referees,  notaries  and 
secretaries  or  clerks,  messengers  or  constables.'  We  shall 
now,  in  the  following  articles,  treat  of  these  various  persons. 

Art.  I. 
Of  the  Judge. 

711.  The  judge  {Judex)  is  the  person  who  presides  by 
pubHc  authority  at  the  trial,  and,  so  to  say,  acts  as  the  medi- 
ator between  the  contending  parties,  by  deciding  the  matter 
in  dispute,  according  to  law.  In  other  words,  the  judge  is  a 
person  who  is  vested  with  legitimate  power  to  hear  and  pro- 
nounce upon  litigious  causes.''  The  ecclesiastical  judge  is  a 
person  who  has  this  power  in  regard  to  ecclesiastical  causes 
or  matters.  \ 

712.  Various  ki7ids  of  ecclesiastical  Judges. — Ecclesiastical 
judges  are  divided  chiefly,  i,  into  those  who  hold  by  divine 
right  {Jure  divino),  as  the  Pope,  over  the  entire  Church,  and 

1  Cf.  Schmalzg.,  1.  c,  n.  13.  *  Schmalzg.,  1.  c;  Craiss.,  n.  5540. 


20    Various  Perso7is  who  tisually  take  part  in  Trials. 

in  regard  to  all  ecclesiastical  causes ;  the  bishops,  when  they 
judge  collectively  with  their  head,  the  Roman  Pontiff. 
Whether,  however,  bishops  are  judges  jure  divino,  each  in 
his  own  diocese, — that  is,  whether  they,  in  the  case,  hold 
immediately  of  God — is,  as  we  have  shown,  a  controverted 
question.'  The  other  ecclesiastical  judges  hold  only  by 
ecclesiastical  or  positive  law. 

713.  2.  Into  those  who  may  exercise  the  judicial  power, 
individually  or  singly  {Jtidices  singtilarcs);  and  those  who  can 
do  so  only  collectively — that  is,  in  a  body,  as  the  Roman 
Congregations  of  Cardinals."  Commissions  of  Investigation 
in  the  United  States  and  England  may  also  be  classed  with 
these  judicial  bodies,  though  only  improperly,  as  they  are 
judges  only  in  a  broad  sense. 

714.  3.  Into  ordinary  {Judices  ordinarit)  and  delegated 
{judices  delegati)  judges.  The  former  have  judicial  power 
by  virtue  of  their  office.  As  a  rule,  they  can  delegate  their 
judicial  power  to  others — that  is,  authorize  others  to  act  as 
judges  for  them.  We  say,  as  a  rule;  for  vicars-general,  though 
ordinary  judges,  cannot  delegate  their  judicial  powers  to 
others.  The  latter  are  those  who  act  as  judges,  not  in  their 
own  name,  but  only  in  the  name  or  stead  of  others.  They 
are  delegated  {a)  either  by  the  law  [delegati  a  Jtcre) ;  thus 
bishops  are  frequently  authorized  by  the  Council  of  Trent 
to  act  as  judges  in  place  of  the  Holy  See;  {b)  or  by  a  person 
having  ordinary  judicial  authority  (delegati  ab  homine).  \ 

715.  4.  Into  judges  proper  {judices  proprie  dicti),  or  those 
appointed  by  the  competent  authorities  ;  and  judges  improp- 
erly so-called,  namely,  arbitrators  {arbitri),  or  those  chosen  by 
the  litigants  themselves  to  decide  the  case.  Arbitrators  are 
chosen  by  the  contending  parties  either  with  entire  freedom 
or  by  command  of  the  law.  The  former  are  called  voluntary 
{arbitri  voluntarii),  the  latter  necessary  or  compulsory  arbi- 

'  Supra,  n.  242,  250.  '  Bouix,  De  Jud.,  vol.  i.,  p.  122. 


Various  Persons  who  usually  take  part  in  Trials.   21 

trators  {arbitri  necessarii).  Necessary  arbitrators  have  juris- 
diction not  merely  by  the  consent  of  the  parties  choosing 
them,  but  also  by  law  or  statute.  Hence  they  are  judges 
proper ;  their  sentence  passes  into  res  judicata  (unless  sus- 
pended by  an  appeal),  and  admits  of  an  appeal.'  An  instance 
of  necessary  arbitrators  is  given  in  the  Cap.  39,  De  Off.  Jud. 
Del.,  where  Pope  Gregory  IX.  ordains,  that  when  a  judge 
is  challenged  as  suspected,  arbitrators  shall  be  chosen  to 
decide  whether  the  exception  or  challenge  is  justified  by 
sufficient  cause.  Voluntary  arbitrators  have  no  jurisdiction, 
according  to  the  Roman  or  civil  law,  and  are  not,  therefore, 
judges  in  the  strict  sense.  The  reason  is  that  they  receive 
the  power  to  adjudicate  upon  the  cause  submitted  to  them 
solely  from  the  mutual  agreementof  private  parties,  namely, 
the  litigants,  who  cannot  confer  any  judicial  authority 
proper.  However,  by  the  law  of  the  Church,  as  interpreted 
by  custom,  the  decision  of  voluntary  arbitrators  gives  the 
right  to  make  an  exception  or  to  institute  proceedings  in  the 
ecclesiastical  courts.''  Persons  who  are  chosen  as  arbitrators 
may  accept  or  decline  the  office.  But  once  they  accept, 
they  are  bound,  and  may  even  be  compelled  by  the  superior, 
to  fulfil  the  duties  devolving  upon  them.^ 

716.  5.  Into  judges  a  quo  and  judges  ad  quern.  See  vol.  i., 
p.  425,  sq.  ( 

717.  The  various  judges  in  the  Church  are  the  Supreme 
Pontiff,  Patriarchs,  Primates,  Metropohtans,  Bishops,  and 
prelates  having  quasi  -  episcopal  jurisdiction.  There  are, 
moreover,  various  other  judicial  tribunals,  namely:  i.  The 
sacred  congregations  or  Commissions  of  Cardinals  and  other 
Roman  tribunals ;  2.  Legates,  Nuncios,  and  Apostolic  Visi- 
tors ;  3.  Synodal  judges  chosen  in  each  diocese  to  adjudicate 
causes  committed  to  them  by  the   Holy  See ;  4.  Vicars-gen- 


'  Cf.  cap.  39,  De  Off.  Jud.  Del.  (i.  29);  cap.  14,  De  Rescript,  (i.  3). 
''■  Devoti,  lib.  3,  tit.  17,  §  5.  ^  Devoti,  1.  c,  §  10. 


2  2    Various  Persons  who  usually  take  part  in  Trials. 

eral,  whose  jurisdiction,  though  ordinary,  may  be  restricted 
by  the  bishop;'  5.  Other  judges,  appointed  extraordinarily 
by  the  Holy  See,  or  by  bishops  or  other  prelates  for  par- 
ticular cases — i.e.,  not  to  act  as  judges  permanently,  but 
merely  in  a  certain  case." 

7 1 8.  Who  can  be  appointed  a7i  ecclesiastical  judge?  All  those 
who  are  not  disqualified  by  nature  or  by  law.  Now  the  fol- 
lowing persons  are  disqualified  by  nature — i.e.,  by  reason  of 
certam  mental  or  bodily  defects :  Those  who  are  deaf  or 
dumb,  or  permanently  insane,  or  under  the  age  of  puberty, — 
i.e.,  under  the  age  of  fourteen  {impuberes), — or  deficient  in 
knowledge  {illiierati).  All  these  are  evidently  wanting  in 
those  physical  and  mental  requirements  which  are  necessary 
to  a  judge.'  By  law — i.e.,  canon  law — the  following  persons 
are  chiefly  incapacitated :  Those  who  are  infamous  {infames), 
whether  by  law  {infaniia  juris)  or  by  fact  {infamia  facti),  as 
heretics,  schismatics,  excommunicates,  perjurers,  etc.;  2. 
Slaves;  3.  Women;  4.  Minors  under  the  age  of  twenty, 
though  if  the  parties  consent  they  can  be  chosen  judges  at 
the  age  of  eighteen  complete."  Finally,  lay  persons  cannot 
be  appointed  judges  for  ecclesiastical  causes,  except  by  the 
Pope.  They  can,  however,  be  assessors  in  ecclesiastical 
courts.^ 

719.  Q.  What  is  required  in  a  judge  that  his  sentence 
may  be  valid  ? 

A.  I.  That  he  have  competence  in  the  case;  in  other 
words,  that  the  case  fall  under  his  jurisdiction.  Of  this 
point,  however,  we  shall  speak  more  at  length  further  on 
under  the  heading  "  The  Competent  Tribunal  or  Forum."  \ 

720.  II.  That  there  be  no  circumstances  on  account  of 
which  the  law  declares  the  sentence  null  and  void.     Hence, 

>  Cf.  supra,  n.  620,  627.  '  Bouix,  1.  c,  p.  123;  Craiss.,  n.  5548. 

3  MUnchen,  Canonical  Trials,  vol.  i.,  p.  67;  Soglia,  Inst.  Jur.  Priv.,  §  202. 

*  Cap.  Cum  Vigesimum  41,  De  Off.  Jud.  Del.  (i.  29). 

*  Cap.  Statutum  11,  §  Assessorem,  de  Rescript,  in  6°  (i.  3). 


Various  Persons  who  usually  take  part  in  Trials.   23 

I.  Nobody  can  be  judge  or  assessor  in  the  same  cause  in 
which  he  previously  acted  as  advocate/  The  reason  is  that, 
considering  the  frailty  of  human  nature,  such  a  person  could 
scarcely  feel  inclined  to  give  a  judicial  sentence  different 
from  what  he  formerly  defended  as  just.^  2.  Nor  can  a 
judge  pronounce  sentence  validly  in  a  cause  if  as  a  private 
person  he  is  engaged  in  a  similar  case,  whether  in  the  capa- 
city of  plaintiff  or  defendant.  For  it  would  justly  be  pre- 
sumed that  he  would  judge  in  the  case  as  he  himself  would 
wish  to  be  judged  by  others  in  his  own  case.  This  prohibi- 
tion is  also  conformable  to  natural  law.'/ 

721.  3.  Much  less  can  any  one,  as  a  rule,  be  judge  in  his 
own  cause — i.e.,  in  causes  between  the  judge  himself  and  his 
subjects,  or  where  he  is  himself  directly  interested,  v.g.,  in  the 
case  of  an  injury  inflicted  upon  himself.  We  say,  as  a  rule; 
for  there  are  certain  exceptions.  They  are  as  follows :  i.  The 
judge  who  is  supreme — i.e.,  has  no  superior,  namely,  the  Pope 
— can  be  judge  in  his  own  cause,^  though  it  were  better  and 
more  conformable  to  natural  law  to  commit  the  cause  to  arbi- 
trators or  other  judges,  ordinary  or  delegated.*  2.  Where 
there  is  question  of  matters  pertaining  to  the  exercise  of  vol- 
untary jurisdiction.  3.  If  the  fact — v.g.,  the  injury  to  the  judge 
— is  notorious.  4.  Where  the' matter  does  not  directly  and 
principally  affect  the  person  of  the  judge,  but  his  church  or 
dignity,  though  canonists  say  that  even  in  this  case  the  judge 
can  be  objected  to  as  suspected,  because  of  his  presumed  lean- 
ing or  attachment  to  his  church  or  dignity.'  5.  When  there  is 
doubt  whether  the  jurisdiction  of  the  judge  extends  to  the 
case  brought  before  his  tribunal ;  for,  in  this  case,  the  judge 
can,  as  a  rule,  declare  whether  he  has  jurisdiction  or  not. 
This  is  evident  from  the  Roman  law  adopted  by  canon  law : 

^  Cap.  Postremo  36,  De  Appell.  (ii.  29).         ^  Schmalzg.,  1.  ii.,  t.  i.,  n.  17. 

^  Cap.  Causam  18,  De  Judic.  (ii.  i). 

*  Arg.,  cap.  12,  De  Judic.  (ii.  i);  ex  1.  et  hoc  41  ff.,  De  Haer.  Inst. 

^  Schmalzg.,  1.  c,  n.  18.  *  lb.,  n.  19. 


24   Various  Persons  who  usually  take  part  in  Trials. 

^''Praetoris'  {j'udicis)  "  est  aestimare  an  sua  sit  jurisdiction  '  The 
reason  is  that  in  this  case  the  judge  cannot  be  said  to  judge 
in  his  own  cause,  since  he  does  not  derive  any  personal  bene- 
fit or  satisfaction  from  his  decision.  We  say,  as  a  rule  ;  for  in 
three  cases  the  judge  cannot  decide  whether  or  not  he  has 
jurisdiction  in  the  case,  namely,  i,  when  a  defect  is  objected 
to  him  affecting  his  own  person — v.g.,  that  he  is  excommuni- 
cated, infamous,  or  incapable  of  having  jurisdiction  ;  2,  when 
he  is  challenged  as  suspected,  unless  the  challenge  is  frivo- 
lous ;  3,  if  the  judge,  whose  jurisdiction  is  called  in  doubt, 
would  receive  a  notable  benefit  by  trying  the  cause." 

722.  Is  a  judge  competent,  from  the  fact  that  he  is  so  con- 
sidered, although  in  reality  he  has  no  jurisdiction :  in  other 
words,  are  the  acts  and  sentence  of  a  judge  valid,  who  is  re- 
puted to  be  competent,  or  vested  with  jurisdiction,  but  who 
in  reality  has  none?  We  have  already  sufficiently  answered 
this  question  above,  n.  223-226. 

723.  Q.  What  are  the  general  duties  or  obligations  of 
judges? 

A.  I.  They  must  have  sufficient  knowledge.  A  judge 
who  pronounces  an  unjust  sentence,  because  of  a  want  of 
sufficient  knowledge,  commits  a  mortal  sin,  and  is  bound 
to  make  restitution  to  the  party  injured.  Hence  a  judge  des- 
titute of  the  necessary  learning  cannot  be  absolved  in  con- 
fession, unless  he  resigns  his  office,  or  has  a  firm  purpose  of 
so  doing.^  Moreover,  if  a  judge  finds  he  has  made  a  mistake, 
even  though  without  any  grievous  fault  on  his  part,  and  thus 
injured  one  of  the  litigants,  he  is  bound  to  correct  it,  or  hin- 
der its  effects,  if  he  can  do  so  without  incurring  a  bad  name. 
He  may  try  to  rectify  his  mistake,  v.g.,  by  telling  the  injured 
party  to  appeal,  or  by  suggesting  other  suitable  remedies.\ 

724.  2.  A  judge  sins  mortally  by  deferring  without  just 

'  L.  5  ff.,  De  Jud.  (v.  i);  ex  1.  unica,  C.  Si  Quis  Imp.  Maled.  (ix.  7). 
*  Schmalzg.,  1.  c,  n.  19  (4).  ^  S.  Thomas,  2.  2,  q.  66,  art.  2. 


Various  Persons  who  usually  take  part  in  Trials.  25 

cause  the  hearing  of  cases  for  a  very  notable  time ;  and  he 
is  bound  to  make  restitution  to  the  injured  party  for  all  dam- 
ages and  expenses  caused  by  the  unjust  delay.' 

725.  3.  Both  by  divine  and  ecclesiastical  law,  a  judge  is 
forbidden  to  accept  gifts  from  the  litigants/  A  judge  who 
accepts  gifts  of  considerable  value  is  not  only  guilty  of  mor- 
tal sin,  but  also  bound  to  restore  them.  Nor  can  he  be  re- 
leased from  this  obligation  by  the  remission  of  the  parties 
from  whom  he  received  the  money  or  present.  This  is 
expressly  enacted  by  Pope  Boniface  VIII.,  as  follows:  ."  Si 
quid  autem  contra  Constitutionem  praesentem"  (judex  eccle- 
siasticus)"  receperit,  ad.ipsius  restitutionem  integram  tenea- 
tur:  nulla  eorum,  quibus  restitutio  facienda  fuerit,  remissione 
ulatenus  profutura  eidem."  ^  In  like  manner,  persons  giving 
or  receiving  anything  for  the  obtaining  of  a  favor,  or  of  jus- 
tice from  the  Holy  See,  formerly  incurred  ipso  facto  excom- 
munication, and  that  reserved.  We  S2iy,  formerly ;  for  this 
censure  is  not  mentioned  in  the  Const.  Apost.  Sedis  of  Pope 
Pius  IX.,  and  is  therefore  no  longer  in  force.  If  the  above 
persons — namely,  those  giving  or  receiving  presents  in  the 
case — are  ecclesiastics,  they  are  deprived,  even  at  present,  of 
all  their  offices  and  benefices.*  However,  if  the  ecclesiastical 
judge  has  no  fixed  stipend  or  suitable  means  of  support,  he 
can  demand  an  honorary  from  the  litigants.V 

726.  4.  The  judge  is  the  guardian  or  custodian,  not  the 
arbitrary  controller,  of  the  law.  Hence  he  must  take  the  law 
as  it  is,  and  give  his  decision  in  accordance  with  it.  Now, 
in  civil  causes,  he  must  as  a  rule  pronounce  sentence  accord- 
ing to  the  more  probable  opinion.  We  say,  in  civil  causes; 
for  in  criminal  causes  the  accused  should  be  pronounced  not 
guilty,  unless  his  crime  is  proved  beyond  a  doubt  or  to  a 

*  Ferr.,  V.  Judex,  n.  32.  ' 

'  Exod.  xxiii.   8;    Deut.   xvi.   19;    Can.   Judices  23,  et  Can.  Jubemus   126, 
Caus.  I,  q.  I.  *  Cap.  Statutum  11,  De  Rescript.,  in  6°  (i.  3). 

*  Craiss.,  n.  5564.  ^  Ferr.,  V.  Judex,  n.  45. 


26   Various  Persons  who  usually  take  part  in  Trials. 

certainty.  We  said  also,  as  a  rule;  for  certain  grave  civil 
causes  are  placed  on  an  equal  footing  with  criminal  causes, 
and  the  sentence,  in  their  case,  must  be  given  upon  proofs 
which  give  not  merely  a  greater  or  less  degree  of  probability, 
but  certainty.  Thus  full  and  complete  proof  is  needed,  of  the 
nullity,  in  order  that  a  marriage  which  has  been  contracted 
may  be  declared  invalid.  Where,  all  things  considered,  the 
judge  finds  that  both  the  litigants  have  equally  probable 
opinions  in  their  favor,  or  that  equally  strong  arguments  or 
proofs  militate  in  favor  of  each  of  the  contending  parties,  he 
should,  in  civil  causes,  divide  the  object  equally  between  the 
parties,  or  advise  a  compromise,  or  arbitration.'  If  however, 
in  the  case,  one  of  the  parties  has  bona  fide  possession  of  the 
object  in  dispute,  decision  should  be  given  in  his  favor,  ac- 
cording to  the  Reg.  juris  ii,  in  6°  :  "  Cum  sunt  partium  jura 
obscura,  reo  favendum  est  potius,  quam  actori ;"  and  the 
other  Reg.  juris  65,  in  6° :  "  In  pari  delicto  vel  causa,  potior 
est  conditio  possidentis."  And  this  holds  even  when  the 
arguments  or  proofs  favoring  the  plaintiff  are  more  probable 
than  those  favoring  the  defendant,  or  the  one  in  actual  pos- 
session of  the  controverted  thing,  provided  the  reasons  mili- 
tating in  favor  of  the  latter  are  really  probable  or  good.' 
An  exception,  however,  must  be  made  in  favor  of  privileged 
causes,  namely,  marriage  (as  we  have  just  seen),  dowers, 
and  testaments.'  Because  the  law  of  the  Church  expressly 
declares  that  when  in  these  causes  the  proofs  are  equally 
strong  or  probable  on  both  sides  as  pro  and  con,  judgment 
is  to  be  given  in  favor  of  the  validity  of  the  marriage,  testa- 
ment, dower,  etc.*/ 

727.  5.  As  a  rule,  the  judge  must  pronounce  sentence  ac- 
cording to  the  evidence  or  testimony  submitted — secundum 
allegata  et  probata!"     But  is  he  bound  to  do  so,  even  when 

'  Ferr.,  1.  c,  Nov.  Add.,  n.  10.      'Craiss.,  n.  5567.       ^  Fern,  1.  c,  n.  54. 
*  Cap.  ExLitteris  3,  De  Prob.  (ii.  19).      ^  Ex  Can.  Judicet4,  Caus.  3,  q.  7. 


VarioiLS  Persons  who  usually  take  part  in  Trials.   27 

his  own  private  information  or  knowledge  is  to  the  contrary  ? 
The  question  is  disputed.  There  are  three  opinions.  The 
first,  that  of  St.  Thomas/  affirms  universally.  The  second 
denies  universally.  The  third,  which  Ferraris"  calls  more 
probable  than  the  other  two,  distinguishes  and  holds  that  the 
judge  can  and  should  pronounce  sentence  according  to  the 
allegata  et  probata  in  civil,  and  also  in  those  criminal  causes 
{causae  criminales  minores)  where  the  punishment  to  be  in- 
flicted is  merely  a  pecuniary  fine,  dismissal  from  office,  etc., 
but  not  in  graver  criminal  causes,  or  those  w^here  the  punish- 
ment of  death  or  mutilation  is  to  be  inflicted.  As  the  Church 
never  inflicts  the  penalty  of  death  or  mutilation,  it  would  fol- 
low from  the  third  opinion  that  the  ecclesiastical  judge  in 
the  case  must  always  pass  sentence  in  accordance  with  the 
evidence,  or  seamdum  allegata  ct  probata,  even  against  his  own 
certain  private  knowledge,  save  in  the  case  where  he  would 
have  to  oblige  a  woman  to  live  with  a  man  not  her  husband. 
Whatever  opinion  a  person  may  choose  to  follow,  it  is  cer- 
tain that  the  judge,  in  the  case,  is  bound  to  do  all  in  his 
power  to  procure  the  acquittal  {v.g.,  by  closely  questioning 
the  witnesses,  endeavoring  to  find  reasons  for  dismissing  the 
charge) '  of  an  accused  person,  whom  of  his  own  private 
knowledge  he  certainly  knows  to  be  innocent ;  and  that,  if  he 
cannot  succeed  in  doing  this,  he  should,  if  possible,  send  the 
case  up  to  the  higher  judge." 

728.  Q.  Can  a  judge  pronounce  an  accused  person  guilty, 
who  by  the  juridical  evidence  is  not  proved  guilty,  but 
whom,  of  his  own  private  knowledge,  he  certainly  knows  to 
be  guilty  ?/ 

A.  He  cannot.  For,  as  we  have  seen,  a  judge  is  bound, 
as  a  rule,  to  pronounce  sentence,  not  according  to  his  own 
private  information,  but  secundum  allegata  et  probata.     Hence 

^  2.  2,  q.  64,  art.  6,  ad.  3.  *  V  Judex,  n.  60. 

*  Ferr.,  1.  c,  n   63.  *  Craiss.,  n.  5570, 


28    Varioiis  Persoois  who  ns7ially  take  part  in  Trials. 

he  cannot  condemn  any  person,  unless  the  latter  has  been 
juridically  proven  guilty.  This  principle  is  very  lucidly 
explained  b}^  St.  Thomas,'  as  follows :  "  Sed  contra  est  quod 
Ambrosius  dicit  super  psalterium,  Bofius  judex  nihil  ex  arbi- 
trio  suo  facit,  sed  secundum  leges  et  jura  pronuntiat.  Sed  hoc 
est,  judicare  secundum  ea  quae  in  judicio  proponuntur  et 
probantur.  Ergo  judex  debet  secundum  hujusmodi  judicare, 
et  non  secundum  proprium  arbitrium."  He  then  lays  down 
this  conclusion :  "  Cum  judicium  ad  judices  spectet,  non 
secundum  privataiJt,  sed  publicam  potestatem,  oportet  eos 
judicare,  non  secundum  veritatem,  quam  ipsi,  ut  personae 
privatae  fioverunt;  sed  secundum  quod  ipsis,  ut  personis  pub- 
licis,  per  leges,  per  testes,  per  instrumenta  et  per  allegata  et 
probata  res  innotuit." '' 

729.  Q.  Is  the  above  principle — namely,  that  ecclesiastical 
judges  must  pronounce  sentence  seciindum  allegata  et  probata 
— also  applicable  to  Commissions  of  Investigation  in  the 
United  States  and  England  ?  In  other  words,  are  Commis- 
sions of  Investigation  in  the  United  States  and  England 
obliged  to  make  up  their  verdict  or  opinion,  on  the  merits 
of  the  cause  submitted  to  them  for  investigation,'  according 
to  the  allegata  et  probata  ?\ 

A.  We  feel  inclined  to  answer  in  the  affirmative, and  that 
on  the  principles  laid  down  by  St.  Thomas.  For  as  the 
Angelic  Doctor  says :  "  Judicare  pertinet  ad  judicem,  secun- 
dum quod  publica  potestate  ;  et  ideo  informari  debet  in  judi- 
cando,  non  secundum  id  quod  ipse  novit  tanquam  privata  per- 
sona, sed  secundum  id  quod  sibi  innotescit  tanquam  personae 
publicae.  Hoc  autem  innotescit  ei  .  .  .  in  particular!  negotio 
aliquo"  (judicio  aliquo)  "  per  instrumenta  et  testes,  et  alia 
hujusmodi  legitimadocumenta,  quae  debet  sequi  in  judicando, 
magis  quam  quod  ipse  novit  tanquam  privata  persona."* 
However,  it  might  be  objected  that  Commissions  of  Investi- 

1  2.  2,  q.  67,  art.  2.  «  1.  c. 

3  Instr.  S.  C.  de  P.  F.,  20  Jnlii,  1878,  §  9.  *  1.  c,  2.  2,  q.  67. 


Vari02is  Persons  who  usually  take  part  in  Trials.   29 

gation  in  the  United  States  and  England  are  not  judicial 
bodies  proper,  as  they  do  not  and  cannot  pronounce  the  final 
sentence,  but  merely  give  their  verdict  or  opinion  on  the 
case,  which  the  bishop,  who  is  the  judge,  is  at  liberty  to  dis- , 
regard  ;  that,  consequently,  the  reasoning  of  St.  Thomas  does 
not  apply  to  these  Commissions.  The  objection  does  not 
seem  to  us  well  taken.  For  the  S.  C.  de  Prop.  Fide,  in  its 
reply  to  the  Dubia  or  questions  proposed  by  bishops  of  the 
United  States,  concerning  the  meaning  of  the  Instruction  of 
July  20,  1878,  on  Commissions  of  Investigation,  expressly  de- 
clares that  these  Commissions  do  exercise  judicial  functions, 
as  the  investigation  or  trial  is  committed  to  them  exclusively. 
So  far,  then,  as  concerns  the  trial  or  hearing  of  the  cause,  the 
Commissions  of  Investigation  take  the  place  of  the  judge 
proper,  or  bishop  ;  this  part  of  the  judicial  proceedings  hav- 
ing been  transferred  by  the  Holy  See  from  the  ordinary  to 
them.  Hence  they  form  an  integral  part  of  the  Bishop's 
Court,  act  as  judges,  so  far  as  concerns  the  investigation, 
and  are  bound  to  follow  the  same  rules  which  the  judge 
proper  would  be  obliged  to  observe  if  he  conducted  the 
trial  personally.  What,  therefore,  St.  Thomas  says  above  of 
judges,  also  applies  to  Commissions  of  Investigation.  Again, 
the  opinion  or  verdict  of  the  Commission  forms  the  basis  for 
the  sentence  or  action  of  the  bishop,  and  in  case  of  appeal, 
also  of  the  superior  to  whom  the  appeal  is  made.  Now,  as 
we  have  seen,  the  judge  (in  our  case,  the  bishop,  or  on  ap- 
peal, the  metropolitan)  can,  as  a  rule,  base  his  decision  only 
on  juridical  proofs — that  is,  he  must  decide  seamdum  allegata 
et  probata.  / 

730.  But  it  may  again  be  objected  that  the  trial  or  hear- 
ing of  the  cause  before  the  Commission  of  Investigation  is 
not  a  canonical  trial  proper  or  processus  canonicus;  that,  con- 
sequently, neither  the  Commission  of  Investigation  nor  the 
bishop  need  decide  secundum  allegata  et  probata,  but  may  act 
upon  private  information.     This  objection  also  seems  to  us 


30   Variotis  Persons  who  usually  take  part  in  Trials. 

destitute  of  a  solid  foundation.  For  that  the  proceedings  or 
functions  of  Commissions  of  Investigation  are  judicial,  is  too 
obvious  to  admit  of  dispute,  and  is,  moreover,  expressly  de- 
fined by  the  Propaganda,  in  its  reply  Ad  Dubia,  when  it  says : 
"  Ex  quibus  patet  ofiicium  Consiliariorum  judiciale  quidem 
esse,  cum  instructio"  (the  trial  or  hearing  of  the  cause)  "  sit 
iisdem  commissa."  Consequently  the  Commissioners  and 
the  bishop  act  as  judges,  each  in  his  own  sphere.  Now 
St.  Thomas,  as  we  have  seen,  lays  down  the  principle  that 
whenever  superiors  proceed  as  Judges,  they  are  bound  to 
decide  seciinduni  allegata  et  probata.  Moreover,  canonical 
trials  are,  as  we  have  shown,  divided  into  ordinary  and  sum- 
mary or  extraordinary.  Now  in  the  latter  many  of  the  for- 
malities prescribed  for  the  former  may  be  omitted.  Yet 
will  any  one  on  that  account  say  that  in  summary  or  extra- 
ordinary trials  the  judge  need  not  decide  secundum  allegata  et 
probata  ? 

731.  Finally,  it  seems  scarcely  necessary  here  to  say  that 
the  very  object  and  aim  of  all  judicial  proceedings  is  to  pre- 
vent the  judge  from  acting  on  his  own  private  information, 
and  thus  being  led  into  error.  Hence  we  conclude  that  as 
Commissions  of  Investigation  exercise  judicial  functions,  the 
hearing  of  the  cause  being  committed  to  them,  and  as  their 
opinion  or  verdict  forms  the  basis  of  the  sentence  of  the 
bishop,  they  should,  in  making  up  their  verdict,'  be  guided, 
not  by  their  private  information,  but  by  what  has  been  juridi- 
cally proved.  However,  if  the  private  knowledge  or  infor- 
mation of  a  member  of  the  Commission  of  Investigation 
conflicts  with  that  juridically  obtained,  he  can  and  should 
make  use  of  his  private  knowledge  in  order  to  examine 
the  testimony  more  closely,  so  as  to  discover  its  defective- 
ness.' I 

732.  How  are  delegated  judges  appointed?  or  how  are 

1  Cf.  Instructio  S.  C.  de  P.  F.,  20  Julii,  1878,  §  9.        »  Cf.  S.  Thomas,  1.  c. 


Various  Persons  who  jtsically  take  part  in  Trials.  3 1 

judges  appointed    by    delegation?     We  have   already  suffi- 
ciently answered  this  question  above,  under  n.  227,  228. 

733.  Who  can  be  appointed  delegated  judges?  or  upon 
whom  can  judicial  power  be  delegated  ?  The  answer  has 
already  been  given  above,  under  n.  231-235.  We  here  but 
add  that  an  ordinary  judge— •z/.^.,  a  bishop — can  delegate 
causes  of  his  court  not  only  to  a  person  subject  to  him,  but 
even  to  one  not  subject  to  him  ;  in  other  words,  a  bishop  can 
authorize  a  person  not  belonging  to  his  diocese,  and  there- 
fore not  subject  to  him,  to  act  as  judge  in  his  stead.  The 
latter,  however,  cannot  be  compelled  to  accept  the  office, 
while  a  subject  can.' 

734.  Q.  How  can  and  should  delegated  judges  proceed 
when  several  (two  or  more)  are  appointed  to  take  cognizance 
of  the  same  cause  ?/ 

A.  We  premise :  They  are  appointed  ia)  either  in  solidiun, 
{b)  or  only  simplicitcr,  {c)  or  in  such  manner  that  if  all  cannot 
hear  the  cause  together  the  rest  can  do  so.  We  now  answer: 
I.  If  they  are  appointed  in  solidum, — that  is,  if  in  the  letter  of 
their  appointment  the  following  or  a  similar  formula  is  used 
"  Ut  omnes,  ant  duo,  z'^/  unus  mandatum  exequantur,  aut 
exequatur" ;  in  other  words,  if  the  formula  of  appointment 
expressly  states  that  the  cause  may  be  heard  and  decided 
either  by  all  of  the  delegated  judges,  or  by  two,  or  even  by 
one  of  them,  then  there  is  room  for  prevention, — i.e.,  preoccu- 
pation or  anticipation, — so  that  if  one  of  them  has  begun  to 
hear  or  try  the  cause  without  the  others,  the  latter  cannot 
interfere  or  take  part  in  the  proceedings,  save  in  case  the 
delegated  judge  who  began  to  hear  the  cause  is  hindered 
from  proceeding  by  infirmity  or  other  cause,  or  maliciously 
refuses  to  go  ahead.'^  Hence,  in  this  case,  each  one  of  the 
delegated  judges  can  individually  or  by  himself,  and  without 

'  Ex  Cap.  Pastoralis  28,  De  Off.  Jud.  Del.  (i.  29).     Schmalzg.,  h.  t.,  n.  16. 
2  Cap.  8,  De  Off.  et  Pot.  Jud.  Del.  in  6°  (i.  14). 


32    Various  Persons  who  usually  take  part  hi  Trials. 

the  others,  hear  the  cause,  as  the  Cap.  just  quoted  expressly 
declares :  "  Ipsorum  quilibet  injunctura  potest  libere  adim- 
plere  mandatum." ' 

735.  2.  If  they  are  appointed,  not  in  solidiini,  but  simpliciter, 
and  without  the  above  or  other  similar  clause  empowering 
them  to  act  or  proceed  separately :  in  other  words,  if  the  in- 
strument of  their  appointment  simply  states  that  a  certain 
cause  or  causes  are  committed  to  them,  and  does  not  state  in 
express  or  equivalent  terms  that  they  can  proceed  indi- 
vidually or  separately,  then  they  must  proceed  collectively, 
and  in  a  body ;  and  one  cannot  hear  the  cause  without  the 
others,  even  where  one  of  them  is  legitimately  hindered  or 
has  died.  Otherwise  the  proceedings  are  ipso  jure  null  and 
void,  except  when  the  letter  of  appointment  states  differently. 
Thus  Pope  Alexander  III.  says:  "Cum  causa  duobus  com- 
mittitur,  sententia  unius  non  tenet." "  | 

736.  3.  If  several  are  appointed  to  hear  the  same  cause,  in 
these  or  similar  words  :  "  Ut  si  omnes  interesse  nequiverint, 
reliqui  mandatum  exequantur,"  ^  they  must  indeed  proceed 
collectively  or  in  a  body  ;  but  if  one  or  the  other  of  them  is 
absent  by  reason  of  a  legitimate  excuse,  the  rest  can  proceed 
without  the  absentee,  provided  the  excuse  of  the  absent 
member  be  properly  communicated — v.g.,  by  the  absentee 
in  person,  or  by  letter  or  messenger  from  him,  or  in  some 
other  canonical  manner — to  the  remaining  delegated  judges  ; 
otherwise — i.e.,  without  such  notification — the  latter  cannot 
proceed  ;  and  if  they,  nevertheless,  do  proceed,  their  acts  are 
null  and  void.  But  if  any  one  of  them  refuses  to  attend, 
where  it  is  possible  for  him  to  be  present, — i.e.,  where  he  is 
not  lawfully  hindered, — the  rest  can  proceed  as  soon  as  they 
have  certain  or  undoubted  information  of  the  refusal  on  the 
part  of  their  colleague.     The  latter  commits  a  grievous  sin 

'  Cf.  Schmalzg.,  1.  i.,  tit.  29,  n.  17. 

«  Cap.  16,  De  Off.  Jud.  Del.  (i.  29).     Schmalzg.,  1.  c. 

3  Cap.  21,  De  Off.  Jud.  Del.  (i.  29). 


Var totes  Persojts  who  usually  take  part  in  Trials.   33 

by  his  action.'  For  the  rest  in  the  above  cases,  as  in  all 
cases  where  a  matter  is  to  be  adjudicated  by  several  per- 
sons collectively,  the  opinion  of  the  majority  is  to  be  fol- 
lowed ;  in  other  words,  the  majority  decides.  When  the 
votes  are  equally  divided,  recourse  must  be  had  to  the  sUv 
perior  from  whom  the  delegation  emanated." 

737.  Q.  Whether  and  in  what  manner  the  foregoing  prin- 
ciples apply  to  Commissions  of  Investigation  in  the  United 
States  and  England  ? 

A.  We  premise  :  i.  These  Commissions,  as  established  in 
the  United  States  by  the  S.  C.  de  Prop.  Fide,  July  20, 1878,  for 
the  adjudication  of  criminal  and  disciplinary  causes  of  eccle- 
siastics, are  composed  of  five,  or  where  so  many  cannot  be 
had,  of  at  least  three  members,  who  must  be  priests  of  the 
highest  integrity,  and,  as  far  as  possible,  learned  in  canon 
law.^  2.  That  these  Commissions  must  proceed  collectively, 
is  plain  from  the  Instriictio  quoted.*  Hence,  too,  it  is  ex- 
pressly provided  in  said  Instructio  that  each  and  every  mem- 
ber of  the  Commission  shall  be  invited  to  the  proceedings, 
and  that  b}'^  letter."  3.  The  vote  of  the  majority  decides  or 
rules,  and  that  not  only  in  regard  to  the  final  opinion  or  ver- 
dict,^ but  also  all  interlocutory  sentences — i.e.,  all  interme- 
diate steps,  resolutions,  or  proceedings.  / 

738.  We  now  answer:  i.  It  is  certain  that  in  all  cases 
where  a  member  absents  himself  without  legitimate  cause, 
which  he  is  bound  to  communicate  to  the  other  members  of 
the  Commission, — v.g.,  by  letter  or  messenger, — he  commits 
a  mortal  sin,  being  guilty  of  disobedience  or  contempt  (or 
at  least  indifference  and  carelessness)  of  a  grave  command  of 
the  Holy  See,  which,  in  establishing  these  judicial  councils  or 
bodies  for  this  country,  has  at  least  impliedly  ordained  that 
each  and  every  member  shall  attend  the  proceedings  of  the 

'  Cap.  21,  cit.  **  Bouix,  De  Jud.,  vol.  i.,  p.  151. 

3  Instr.  S.  C.  de  P.  F.,  20  Julii,  1878,  g  Itaque. 

*Cf.  lb.,  §9.  Mb.,' §3.  «Cf.  lb.,  §9. 


34    Various  Persons  who  usually  take  part  in  Trials. 

Commission.  The  reason  is  thus  given  by  PopeCelestin  III., 
in  speaking  of  delegated  judges:  "Ilia  fuit  antiqua  sedis 
apostolicae  provisio,  ut  hujusmodi  causarum  recognitiones, 
duobus,  quam  uni,  tribus  quam  duobjs,  libentius  delegaret, 
cum  integrum  sit  judicium,  quod  plurimorum  sententiis  con- 
firmatur."  '  In  fact,  it  is  clear  that  the  superior,  in  charging 
several  persons  to  take  cognizance  together  of  the  same 
cause,  does  so  precisely  because  he  has  greater  confidence  in 
the  combined  action  and  opinions  of  all  than  of  some  only. 

739.  2.  But  are  the  proceedings  invalid  in  case  some  of 
the  members  absent  themselves  from  the  meetings  of  the 
Commission  ?  They  are  not,  in  case  at  least  three  mem- 
bers are  present,  as  we  shall  presently  show.  But  what  if 
less  than  three  attend  ?  We  distinguish.  In  causes  or  mat- 
ters which  fall,  properly  speaking,  under  the  competence  of 
the  Commission, — that  is,  which  must,  before  decision  is 
rendered  by  the  bishop,  be  brought  before  the  Commission, — 
three  members  at  least  must  be  present  at  all  the  proceedings 
in  the  case,  and,  upon  the  conclusion  of  the  trial  or  hearing, 
give  their  verdict  or  opinion  on  the  case.  Otherwise  the 
proceedings  are  null  and  void,  and  the  subsequent  action  or 
sentence  of  the  bishop  invalid  and  of  no  effect.  Thus  the 
Instruction  of  the  S.  C.  de  Prop.  Fide  of  July  20,  1878,  speak- 
ing of  the  case  of  dismissal,  expressly  says :  "  Quod  si  de 
alicujus  Rectoris  Missionis  remotione  agatur,  nequeat  ipse  a 
credito  sibi  munere  dejici,  nisi  tribus  saltern  praedictae  Com- 
missionis  membris  per  Episcopiini  ad  causam  cog7iosccndain 
adhibitis,  eorumqtie  consilio  audito!'^  Hence  if,  during  the 
course  of  an  investigation  or  trial  in  such  causes,  the  number 
of  commissioners  attending  the  proceedings  should  be  re- 
duced to  less  than  three,  whether  by  death,  resignation,  chal- 
lenge, or  otherwise,  others  must  be  appointed  to  fill  up  the 
number,'  and  meanwhile  all  proceedings  suspended./ 

>  Cap.  21,  cit.  s  Instr.  cit.,  §  Quod  si. 

8  Cf.  Instr.  cit.,  §  Electi  Consiliarii;  cf.  Ad  Dubia,  §  Extra  Synodum. 


Various  Persons  wJio  usually  take  part  in  Trials.   35 

740.  3.  When  there  is  question  of  other  causes  not  neces- 
sarily to  be  brought  before  the  Commission  of  Investigation, 
it  is  plain  that  the  proceedings  are  not  invalid,  nor  even, 
at  least  theoretically  speaking,  illicit,  if  less  than  three  mem- 
bers of  the  Commission  attend.  For  in  these  cases  the 
Commission  would  act  or  obtain  competence  by  the  consent 
of  the  litigants,  who  may  agree  to  allow  a  less  number  than 
three  to  sit  upon  the  case.  We  say,  theoretically  speaking;  for 
it  is  evident  from  the  whole  tone  of  the  Instructio,  dated 
July  20,  1878,  of  the  S.  C.  de  P.  F.,  and  also  from  the  practice 
of  the  Sacred  Congregation  of  referring  all  cases  whatever  to 
the  Commissions  of  the  respective  dioceses  where  the  cause 
originates,  that  the  Holy  See  desires  all  cases  whatever  of 
dispute  among  ecclesiastics  to  be  submitted  in  the  first 
instance  to  the  Commission.'  Consequently,  it  is  also  the 
desire  of  Rome  that  in  all  cases  the  mode  of  procedure  of 
the  Commission,  and  also  the  number  of  its  members,  be 
regulated  by  the  Instruction  of  July  20,  1878./ 

741.  In  connection  with  this  matter  it  need  scarcely  be 
said  that  Commissions  of  Investigation  in  the  United  States 
or  England  cannot  proceed  to  take  cognizance  of  a  cause, 
save  upon  being  convened  by  the  bishop  {sede  vacante,  admin- 
istrator), to  whom  alone  belongs  the  initiative."  But  when 
once  convened  by  the  ordinary  according  to  §3  of  the  above 
Instruction,  the  Commission  itself,  and  not  the  ordinary, 
determines  whether,  when,  and  how  often  future  meetings 
or  sessions  are  to  be  held  in  the  hearing  of  a  case.'  Of 
course  if  the  bishop  should  unjustly  refuse  to  call  the  Com- 
mission together,  an  appeal  lies  against  such  refusal,  just  the 
same  as  in  the  case  of  any  other  grievance.  For  as  Pope 
Alexander  III.  says:  "  De  ?i^^Q\\2it\ombus pro  causis  ininiinis 
interpositis,  volumus  te  tenere,  quod  eis,  pro  quacunque  levi 


'  Cf.  Instr.  cit.,  §  Commissionis  ita;  §  In  Causis  Cognoscendis. 

^  Instr.  cit.,  §  3  Locum.  ^  instr.  cit.,  §  10  Quod  si  ulterior. 


36    Various  Persons  who  usually  take  part  in  Trials. 

causa  fiant,  non  minus  est,  quam  si  pro  majoribus  fierent, 
deferendum."  * 

742.  Q.  Can  a  delegated  judge  proceed  to  take  cognizance 
of  the  cause  before  he  has  received  the  rescript  or  letter  of 
his  appointment  or  delegation  ? 

A.  He  cannot.  If  he,  nevertheless,  does  so,  his  acts  are 
null  and  void.''  Nay,  the  letter  of  appointment  must  be 
shown  in  its  authentic  form  to,  and  a  copy  of  it  given,  the 
contending  parties  when  they  appear  before  the  delegate. 
Otherwise  they  are  not  bound  to  obey  him.^  The  reason 
is,  among  others,  that  nobody  is  presumed  to  have  judicial 
power  in  a  place  but  the  ordinary  judge  of  such  place,  unless 
the  contrary  is  proved.  Yet  there  are  some  exceptions. 
Thus:  I.  A  delegate  of  the  Pope  need  not  show  his  letter  of 
appointment  if  the  litigants  and  the  ordinary  are  willing  to 
take  his  word  for  it.  2.  Persons  delegated  by  an  ordinary, 
inferior  to  the  Pope,  can  prove  their  appointment  or  delega- 
tion by  witnesses,  and  not  merely  by  their  letters  of  appoint- 
ment. 3.  If  the  contending  parties  have  commenced  pro- 
ceedings before  the  delegate,  prior  to  being  shown  his  letters 
of  appointment,  the  proceedings  are  valid,  because  the 
parties  have  thus  waived  their  right  of  seeing  the  letters." 

743.  Q.  How  far  does  the  power  of  a  delegated  judge 
extend  ?\ 

A.  Speaking  in  general,  the  power  of  a  delegated  judge 
is  to  be  measured  from  the  authority  of  the  superior  dele- 
gating and  the  wording  of  the  mandate  or  commission,  so 
that  if  the  delegate  goes  beyond  his  mandate,  his  acts  are 
null  and  void.^  He  does  not,  however,  go  beyond  his  man- 
date if  he  takes  cognizance  of  or  decides  those  matters  or 
questions  which,  though  not  directly  committed  to  him,  are 

'  Cap.  II,  De  Appell.  (ii.  28);  supra,  n.  444.      "^  Cap.  12,  De  Appell.  (ii.  28). 

3  Cap.  31,  De  Off.  Jud.  Del.  (i.  29);  cap.  24,  De  Rescript,  (i.  3). 

^  Schmalzg.,  1.  i.,  tit.  29,  n.  27. 

^  Cap.  32,  37,  De  Off.  et  Pot.  Jud.  Del.  (i.  29);  Schmalzg.,  h.  t.,  n.  28. 


Various  Persons  who  ustially  take  part  m  Trials,   -x,*] 

nevertheless  connected  with  or  accessory  to  the  matter  or 
cause  delegated  to  him.  In  other  words,  he  can,  even  though 
this  be  not  expressly  stated  in  his  commission,  do  all  those 
things  or  has  all  that  power,  without  which  he  could  not 
properly  perform  the  office  assigned  to  him.  The  reason  is 
that  a  person  who  authorizes  another 'to  do  something,  by 
that  very  fact  empowers  him  also  to  use  all  the  means  neces- 
sary or  conducive  to  the  end  to  be  attained.'  Thus  Pope 
Alexander  III.  expressly  says  :  "  Quia  ex  eo,  quod  causa  sibi " 
(delegato)  "  committitur,  super  omnibus,  quae  ad  causam 
ipsam  spectare  noscuntur,  plenariam  recipit  potestatem." " 
Hence,  even  though  it  be  not  mentioned  in  the  mandate,  the 
delegated  judge  can,  among  other  things,  [ci)  cite  the  parties, 
and  compel  them  by  penalties  to  appear  before  him ;'  {b^  he 
can — v.g.^  where  the  parties  cited  object  that  he  has  no  juris- 
diction to  try  the  case,  because,  for  example,  the  letters  of 
his  appointment  are  null  and  void — declare  whether  he  has 
jurisdiction  or  not.* 

744.  Q.  Do  the  principles  just  given  apply  also  to  Com- 
missions of  Investigation  in  the  United  States?/ 

A.  They  do,  in  the  sense  now  to  be  explained.  We  need 
scarcely  observe  that  the  .powers  of  these  Commissions  are 
to  be  determined  by  the  Instruction  of  the  S.  C.  de  P.  F., 
dated  July  20,  1878  (as  explained  by  this  Sacred  Congrega- 
tion in  its  dinsvfQr  Ad  Dubia),  which  establishes  these  Com- 
missions and  defines  their  rights  and  duties.  According  to 
this  document,  these  judicial  councils  are  charged  with  the 
absolute  and  exclusive  hearing  of  certain  kinds  of  causes, 
exclusive  of  the  citation  of  the  defendant  and  the  definitive 
sentence,  which  are  reserved  to  the  bishop.*  If  the  above 
Instruction  itself  could  have  left  any  doubt  upon  this  head, 

>  Schmalzg.,  1.  c,  2.  31.  «  Cap.  5,  De  Off.  Jud.  Del.  (i.  29). 

3  Cap.  4,  De  Off.  Jud.  Del.  (i.  29). 

*  Ex.  cap.  33,  De  Rescript,  (i.  3);  Schmalzg.,  1.  c,  n.  34. 

*  Instr.  cit. ,  §  Commissionis  ita;  §  In  Causis  Cognoscendis. 


2,8    Various  Persons  who  usually  take  part  in  Trials. 

the  decisions  of  the  Propaganda  Ad  Dubia  have  certainly 
removed  it.  For  the  Propaganda  expressly  says  that  the 
hearing  of  the  cause  is  committed  to  these  Commissions.  Its 
words  are :  "  Cum  instructio  sit  iisdem  commissa."  '  Hence, 
according  to  the  principles  above  laid  down  by  us,  these 
Commissions  have  all  those  powers  without  which  they  could 
not  fully  and  properly  hear  and  examine  the  causes  or  mat- 
ters brought  before  them,  and  that  even  though  such  powers 
are  not  expressly  mentioned  in  the  above  Instruction  of  the 
S.  C.  de  P.  F.,  or  its  decisions  Ad  Dubia.  Hence  also,  so  far 
as  concerns  the  hearing  of  the  cause,  or  its  full  and  complete 
investigation,  this  power  extends  not  merely  to  the  naked 
ascertaining  of  facts,  but  also  to  the  mode  or  means  of  ascer- 
taining them.  In  other  words,  they  have  power  to  deter- 
mine, or  rather  apply,  those  questions  of  ecclesiastical  law 
which  com.e  up  in,  and  are  incidental  to,  or  connected  with 
the  hearing  of  the  cause.  Otherwise,  they  could  not  try  the 
cause  properly.  This  is  also  inferable  from  the  fact  that 
the  above  Instruction  calls  the  Commission  a  "  Consilium 
quoddam^V/^zWrt:/^,"'' and  directs  that  as  far  as  possible  its 
members  should  be  canonists,  or  learned  in  canon  law.^ 

745.  When  and  how  does  the  jurisdiction  of  a  delegated 
judge  lapse  ?  The  answer  has  been  already  given."  In  con- 
nection with  this  question,  we  ask,  When  does  a  member  of 
a  Commission  of  Investigation  in  the  United  States  cease  to 
be  a  member,  and  therefore  loses  the  rights  of  a  member  of 
the  Commission  ?  The  answer  is  sufficiently  indicated  in 
the  above  Instruction.^ 

>  Ad  Dubia,  §  Ex  quibus.  *  Instr.  cit.,  §  In  Causis  Cognoscendis. 

2  lb.,  §  Itaque  SSmo.  *  Supra,  n.  378,  379. 

^  Instr.  cit.,  §.  Electi  Consiliarii;  supra,  n.  407. 


Various  Persons  who  usually  take  part  in  Trials.  39 

Art.  1 1. 
Of.  the  Plaintiff  {actor,  acctisator)  and  the  Defendant  {reus). 

746.  Under  this  heading  we  shall  treat  of  two  questions  : 
First,  What  persons  are  admissible  in  ecclesiastical  courts  as 
plaintiffs  or  defendants.  Secondly,  Can  a  person  be  com- 
pelled to  appear  before  the  ecclesiastical  judge,  either  as 
plaintiff  or  defendant? 

747.  I.  WJiat  persons  are  disqualified  frorn  acting  as  plain- 
tiffs or  defendants  f—K's,  in  secular,  so  in  ecclesiastical  courts, 
not  all  persons  can  appear  as  plaintiffs  or  defendants  or  have 
a  standing  in  court  {persojia  stajidi),  some  being  incapacitated 
by  the  natural  law,  others  by  the  ecclesiastical,  others  by 
both.  Now,  what  persons  are  chiefly  excluded  from  acting 
as  defendants  or  plaintiffs  in  ecclesiastical  courts?  i.  Infants, 
or  those  who  have  not  yet  attained  the  use  of  reason ; 
persons  of  unsound  mind  {furiosi,  anient  es)  \  the  deaf,  the  dumb, 
and  prodigals.  These  persons  being  unable  to  defend  their 
rights,  cannot  personally  be  plaintiffs  or  defendants.  We 
say,  personally ;  for  their  guardians  can  sue  and  be  sued  in 
their  stead.'  It  may,  however,  be  doubted  at  present  whether 
this  still  holds  of  those  deaf  or  dumb  persons  who,  by  our 
new  methods  of  instruction,  have  learned  to  understand 
others,  and  make  themselves  understood  by  them.  In  the 
case  of  prodigals,  the  rule  certainly  holds  in  civil  matters. 
Whether  it  does  also  in  criminal  causes,  is  not  so  clear.^ 

748.  2.  TJiose  who  are  under  the  age  of  puberty.  Persons 
under  the  age  of  puberty  {impuberes) — i.e.,  under  fourteen, — 
cannot  indeed  be  plaintiffs  or  defendants  personally  ;  but  a 
guardian  {curator  ad  litem)  is  to  be  appointed  for  them  by  the 
judge  (we  speak  here  of  the  ecclesiastical  judge,  namely,  the 
bishop,  vicar-general,  etc.),  or  they  may,  if  above  the  age  of 

*  L.  Gerere  i,  §  2,  sufEcit  ff.,  de  Adm.  et  per.  tut.  (26.  7);  Schmalzg.,  lib.  2, 
t.  I,  n.  23.  ^Bouix,  1.  c,  pp.  168,  169. 


40   Various  Persons  who  usually  take  part  in  Trials. 

infancy,  be  allowed  by  the  judge  to  select  their  own  agent 
(^procurator)  themselves.'  There  are,  however,  some  excep- 
tions to  this  rule.  Thus,  in  criminal  causes,  children  or 
wards  may  be  admitted  as  plaintiffs  if  otherwise  the  crime 
could  not  be  proved.  For  the  public  good  demands  that 
crimes  shall  not  remain  unpunished.^  It  is  certain  that 
minors — i.e.,  persons  above  the  age  of  fourteen,  but  under  the 
age  of  twenty-five,  may  in  spiritual  causes,  or  those  connected 
with  them,  either  personally  or  by  an  agent  appointed  by 
them,  implead  and  be  impleaded.^ 

749.  3.  Women,  with  certain  distinctions. — Thus,  religious 
women,  even  though  not  under  enclosure,  as  most  of  the 
sisterhoods  in  the  United  States,  cannot  even  with  their  own 
consent  appear  in  any  cause  whatever  personally  in  court, 
ecclesiastical  or  secular,  whether  as  plaintiffs,  defendants,  or 
witnesses.*  We  say,  appear  personally  ;  for  where  it  is  neces- 
sary to  receive  their  testimony,  the  judge  should  either  go 
in  person,  or  send  a  deputy  to  the  convent,  and  take  their 
deposition  there."  As  to  other  women, — i.e.,  secular  women, 
— they  should  not  in  civil  causes  be  compelled  to  appear  per- 
sonally in  court  (we  speak  of  the  ecclesiastical  court).  We 
say,  compelled ;  for  if  they  choose,  they  may  in  such  causes 
sue  or  be  sued  in  person,  and  not  merely  through  procurators. 
In  criminal  causes,  however,  they  are  not  permitted  to  act 
as  plaintiffs  or  rather  accusers,*  save  {ci)  in  order  to  prose- 
cute an  injury  inflicted  upon  them  or  others  belonging  to 
them;  {p)  where  the  public  good  demands  it;  {c)  or  the 
cause  is  such  as  to  require  their  personal  presence.'  We 
said,  to  act  as  plaintiffs ;  for  when  they  are  accused  of  an 
atrocious  crime,  they  can  be  compelled  to  appear  in  court  as 
defendants.* 

'  Cap.  Si  annum  3,  de  Judic.  in  6°  (ii.  i).         *  Schmalzg.,  1.  c,  n.  25. 
^  Cap.  Si  annum,  cit.  ••  Cap.  Mulieres  2,  de  Judic.  in  6"  (ii.  i), 

^  Arg.  ex  cap.  Mulieres,  cit.  ^  L.  8  ff.,  de  Ace.  et  inscr.  (48.  2). 

'  Schmalzg.,  1.  c,  n.  30.  ^  Nov.  134,  cap.  9. 


Various  Persons  who  usually  take  part  in  Trials.  41 

750.  4.  Persons  imdcr  major  excommunication}  Here  we 
must  distinguish  between  those  excommunicates  who  are  to 
be  shunned  {vitandi),  and  those  who  need  not  be  avoided 
{tolerati).  I.  It  is  certain  that  those  who  are  to  be  shunned 
cannot  as  a  rule  (i)  act  as  plaintiffs.  We  say,  as  a  rule ;  for 
there  are  several  exceptions.  Thus,  such  excommunicates 
can,  among  other  cases,  act  as  plaintiffs  ia)  when  they  wish 
to  prove  that  the  excommunication  inflicted  on  them  is,  ipso 
jure,  null  and  void ;  not,  however,  when  they  merely  desire 
■to  show  that  it  is  simply  unjust,  though  valid.  For,  in  the 
latter  case,  they  would  first  have  to  be  absolved  from  the 
excommunication  before  they  could  be  allowed  to  proceed.'* 
{b)  In  all  cases  where  it  is  necessary.  (2)  They  can,  as  a  rule, 
be  admitted,  nay,  compelled,  in  any  cause  whatever,  to  appear 
in  court  as  defendants.^  We  say,  as  a  rule  ;  for  when  they 
appear  voluntarily, — i.e.,  without  having  been  cited,  either 
generally  or  specially, — and  for  their  own  benefit  as  defend- 
ants, they  should  be  rejected.*  II.  An  excommunicate  who 
need  not  be  shunned  can  be  admitted  as  plaintiff,  provided 
neither  the  opposing  party  nor  the  judge  objects.  He  may 
appear  as  defendant,  even  when  he  does  so  of  his  own  free 
will  or  for  his  own  benefit,  if  the  opposing  party  and  the 
judge  consent.^ 

751.  5.  Regulars,  in  the  sense  now  to  be  explained.  We 
observe,  we  speak  here  only  of  members  of  religious  orders 
of  males ;  for  of  religious  communities  of  females  we  have 
already  spoken."  Regulars  who  are  professed  may  be  con- 
sidered, either  individually  or  collectively.  Taken  individu- 
ally, regulars  cannot,  as  a  rule,  appear  in  a  court,  ecclesiastical 
or  secular,  except  by  permission  of  their  superior.  The 
reason  is,  that  by  their  profession  they  become  dead  to  the 
world,  cease  to  be  sui  juris,  and  are  placed  on  the  same  foot- 

'  Cap.  7,  de  Jud.  (ii.  i). 

*  Ex  cap.  I,  de  Rescript.,  in  6°  (i.  3);  Schmalzg. ,  1.  c,  n.  34. 

^  Ex  cap.  7,  cit.     ••  Schmalzg.,  1.  c,  n.  33.     ^  Craiss.,  n.  5605.     ^  Supra,  n.  750. 


42    Various  Persons  who  usually  take  part  in  Trials. 

ing  as  sons  still  under  the  control  of  their  father,  who  can- 
not, as  a  rule,  act  in  court  without  the  consent  of  their 
father.'  We  say,  as  a  rule.  For  the  exceptions  we  refer  to 
Schmalzgrueber."  But  can  the  religious  of  a  monastery, 
taken  collectively,  appear  in  court  as  plaintiffs  or  defendants  ? 
In  other  words,  can  a  monastery  or  religious  house  (the 
same  applies  to  churches  and  other  ecclesiastical  corporate 
bodies)  as  such  implead  and  be  impleaded  ?  As  monasteries 
and  churches  are  moral  persons,  vested  with  various  rights, 
they  must  evidently  have  the  right  to  sue  and  be  sued, 
though  this  cannot  be  done,  except  through  certain  persons, 
to  whom  the  law  of  the  Church  has  committed  the  duty  of 
acting  as  plaintiffs  or  defendants  in  the  name  of  the  church 
or  monastery.'  Now  to  what  persons  has  the  law  of  the 
Church  committed  this  duty  ?  As  a  rule,  to  the  prelate  of 
the  monastery,  at  least  with  the  consent  of  the  monks,  and 
to  the  prelate  of  the  church,  at  least  with  the  consent  of  the 
chapter.*  Thus  Pope  Innocent  III.  says:  "Cum  ex  officio 
suo  teneantur"  (abbates,  praelati)  "  Congregationum  suarum 
negotia  procurare."  ^  By  prelates  are  here  meant  {a)  bishops 
in  respect  to  their  cathedral  church  :  {h)  prelates  having 
quasi-episcopal  jurisdiction  in  a  church  where  there  is  a 
chapter ;  {c)  the  chief  superiors  of  rehgious  orders,  namely, 
abbots  and  superiors-general,  and  generally  provincials  and 
local  superiors,  according  to  the  rules  of  their  order.  By 
the  common  law  of  the  Church,  abbesses  and  other  lady 
superiors  of  religious  female  communities  can,  in  matters  of 
their  respective  houses,  appear  in  ecclesiastical  courts  as 
plaintiffs  or  defendants  by  procurators  or  agents,  in  the 
same  manner  as  prelates  of  regulars.* 

'  L.  8,  C.  de  Bonis,  quae  lib.  (v.  6i);  cap.  3,  de  Jud.,  in  6°  (ii.  i). 

'  1.  c,  n.  38.  3  Bouix,  de  Jud.,  vol.  i.,  p.  177. 

^  Can.  9,  caus.  18,  q.  2;  cap.  Edoceri  21,  de  Rescript,  (i.  3);  Craiss.,  n. 
5607.  6  Cap.  Edoceri,  cit. 

*  Cap.  2,  de  his  quae  a  prael.  (iii.  to);  Glossa,  in  hoc  cap.,  v.  Continebatur; 
Schmalzg.,  1.  c,  n.  40. 


Various  Persons  ivJio  ustially  take  part  in  Trials.  43 

752.  Q.  To  whom  pertains  by  the  common  law  of  the 
Church  the  right  to  appear  as  plaintiff  or  defendant  when 
there  is  question  of  the  rights  and  property  of  parish 
churches? 

A.  To  the  parish  priest,  as  is  inferred  from  the  above 
cap.  Edoceri.  Because,  by  the  common  law  of  the  Church, 
the  parish  priest  also  is  vested  with  the  administration  of  the 
rights  and  property  of  his  parish.  This  must  not,  however, 
be  understood  to  the  exclusion  of  the  bishop.  For  the  latter 
has  cumulative  power  over  all  the  churches  of  his  diocese 
not  exempt  from  his  jurisdiction.  A  fortiori,  rectors  of 
parishes  in  the  United  States  cannot  act  in  the  case  to  the 
exclusion  of  the  bishop.  What  has  been  said  of  parish 
priests  applies  also  to  rectors  of  hospitals  and  other  chari- 
table or  religious  institutions.  Observe  that  in  the  above 
question  we  say,  by  the  common  lazv  of  the  Church;  for  a  great 
deal  depends,  in  this  matter,  upon  custom  and  concordats.' 

753.  II.  Can  a  person  be  compelled  to  appear  against  his  will 
as  plaintiff  or  defendant  ?  The  defendant  certainly  can  ;  and 
if  he  refuses  to  appear  he  may  be  proceeded  against,  even 
though  absent,  and  condemned,  if  found  guilty  upon  due 
investigation  or  trial.  But,  as  a  rule,  no  one  can  be  com- 
pelled to  appear  against  his  will  as  plaintiff,  whether  in  civil 
or  criminal  causes.  Thus  the  Roman  law  adopted  by  the 
Church  says :  "  Invitus  agere  vel  accusare  nemo  cogatur." ' 

754.  Q.  Can  a  plaintiff  or  defendant  be  compelled  to 
appear  in  person  ?  Or,  are  they  always  free  to  appear  by 
proxy — i.e.,  by  an  agent  or  procurator? 

A.  I.  The  Sovereign  Pontiff  can  certainly  compel  the 
parties  to  appear  personally,  and  not  merely  through  agents. 
The  same  applies  to  Papal  delegates  when  they  have  a  special 
mandate  to  that  effect.'     For  while  it  is  true  that  the  law  of 

1  Schmalzg.,  1.  ii.,  t.  i,  n.  40;  cf.  Bouix,  1.  c,  p.  181. 
^  L.  Unic.  C,  Ut  nemo  inv.  ag.  vel  ace.  cog.  (iii.  7). 

2  Ex  cap.  Juris  i,  de  Jud.,  in  6°  (ii.  i);  Glossa,  in  h.  c,  v.  Speclale, 


44   Various  Persons  who  usually  take  part  in  Trials. 

the  Church,  as  we  shall  see,  allows  litigants  to  appear  in  court 
by  proxy,'  it  is  also  certain  that  the  Pope  is  not  bound  by 
this  law.^  2.  The  other  judges  (we  speak  of  ecclesiastical 
judges)  cannot,  as  a  rule,  compel  persons  to  appear  person- 
ally in  court.'  We  say,  as  a  rule ;  for  there  are  several 
exceptions,  namely,  {a)  where  the  cause  is  criminal  and  the 
punishment  to  be  imposed  is  corporal,  or  considered  greater 
than  exile.  In  all  other  criminal  causes  the  defendant  and, 
a  fortiori,  the  plaintiff  may  appear  by  proxy  or  procurator. 
{b)  If  it  is  specially  necessary  to  examine  the  personal  qualities 
of  the  parties."  {c)  Where  the  truth  or  facts  of  the  case  can 
be  better  elicited  or  understood  by  the  personal  statement  of 
the  plaintiff  or  defendant.''  {d)  When  the  indications  of  the 
guilt  of  the  accused  are  so  strong  as  to  give  well-grounded 
hope  that  the  truth  will  be  more  easily  ascertained  by  his 
presence,  his  looks,  his  answers,  etc.  Several  other  excep- 
tions are  given  by  Schmalzgrueber.*  In  a  word,  the  judge 
may  compel  litigants  to  appear  in  person  whenever  he  has 
grave  cause  to  think  that  the  truth  will  thereby  be  better 
ascertained.''  Without  such  grave  and  sufficient  cause, — i.e., 
except  where  it  is  necessary,  as  stated, — the  ecclesiastical 
judge,  inferior  to  the  Pope,  cannot  summon  the  parties  to 
appear  in  person  against  their  will ;  and  if  he  nevertheless 
does  so,  his  act  is  null  and  void.*  Moreover,  the  cause  for 
citing  the  party  to  appear  in  person  must  be  stated  in  the 
citation.  Otherwise  the  party  cited  can  suppose  there  is  no 
sufficient  cause,  and  disobey  the  citation.' 

755-  Q-  Do  the  principles  just  laid  down  in  regard  to  the 
personal  appearance  in  court  apply  also  in  the  United  States 
to  plaintiffs  and  defendahts  summoned  before  Commissions 
of  Investigation  ? 

'  Cap.  2,  de  Proc.  (i.  38).  *SchmaIzg.,  1.  c,  n.  45. 

*  Cap.  Juris,  cit. ;  ibi  Glossa,  v.  Juris  esse. 

*  Ex  1.  2,  C.  de  his  qui  van.  aet.  imp.  (ii.  45).  *  Cap.  14,  de  Jud.  (ii.  i). 

"  1.  c,  n.  47.        ■"  Bouix,  1.  c,  p.  186.        *  Cap.  Juris,  cit.        ^  Bouix,  1.  c. 


Various  Persons  who  itsually  take  part  in  Trials.  45 

A.  We  see  no  reason  why  they  should  not.  For  the 
Instruction  of  the  S.  C.  de  P.  F,,  of  July  20,  1878,  says 
nowhere  that  the  defendant  or  other  parties  must  appear  in 
person.  Consequently,  unless  it  is  expressly  stated  in  the 
citation  that  the  accused  must  come  in  person,  and  the  cause 
therefor  given,  it  would  seem  that  he  has  the  alternative  of 
appearing  either  in  person  or  by  proxy.  Of  course,  accord- 
ing to  the  above  principles,  he  can  be  summoned  and'  com- 
pelled to  appear  in  person  before  the  Commission,  whenever 
this  is  thought  expedient  or  necessary.  Moreover,  it  is 
nearly  always  in  the  interest  of  such  defendant  to  be  person- 
ally present  at  the  proceedings,  even  when  he  is  represented 
by  a  procurator. 

Art.  III. 

Of  Procurators  or  Agents, 

756.  Sometimes  it  will  happen  that  a  person  does  not 
wish  or  is  unable  to  defend  his  rights  in  person.  Hence,  as 
in  secular  so  also  in  ecclesiastical  courts,  litigants  can,  as  we 
have  seen,  appear  either  in  person  or  by  a  procurator  (in 
secular  courts,  attorney). 

757.  What,  then,  is  a  procurator?  Speaking  in  general, 
a  procurator  {procurator)  or  agent  is  a  person  qui  aliena 
ncgotia  mandato  domini  administrate  or  one  who  transacts 
business  for,  or  acts  in  the  name  of,  another.  In  other 
words,  and  to  speak  more  fully,  a  procurator  is  one  who  is 
appointed  by  another  (called  the  principal),  unwilling  or 
unable  to  attend  personally  to  his  own  affairs,  to  manage  in 
whole  or  in  part,  in  his  absence,  these  affairs,  whether  they 
be  judicial  or  extrajudicial.*  Hence  a  procurator  differs  {ci) 
from  an  advocate,  because  the  latter  merely  assists  a  client 
who  is  present,  while  the  former  takes  the  place  of  the  prin- 

'  L.  I  ff.  de  Procurat.  (lii.  3).  ^  Schmalzg.,  1.  i.,  t.  38,  n.  i. 


46    Various  Persons  who  usually  take  part  in  Trials. 

cipal  himself,  who  is  absent ;  {U)  from  a  guardian  [curator, 
tutor),  since  the  latter  is  appointed  not  by  the  ward  or  minor, 
but  by  the  law,  magistrate,  or  deceased  testator,  while  the 
former  is  deputed  by  the  principal  himself. 

758.  Various  kinds  of  Procurators. — How  many  kinds  of 
procurators  are  there?  i.  Some  are  judicial  [procurator 
judicialis,ad  lites,  ad judicid),  others  extrajudicial  [procurator 
extrajudicialis,  ad  ncgotia  extra  Judicium  tractandd),  according 
■as  they  are  deputed  for  judicial  matters,  or  matters  not  of  a 
judicial  nature.  We  speak  here  chiefly  of  judicial  procura- 
tors. 2.  Both  judicial  and  extrajudicial  procurators  may 
be  either  general  [procurator  gencralis)  or  special  [procurator 
spccialis),  according  as  they  are  appointed  either  for  [a)  all 
extrajudicial  affairs,  or  all  judicial  causes,  [b)  or  only  for  a 
certain  affair,  or  a  determinate  judicial  cause.  3.  A  general 
procurator  may  be  appointed  either  cum  libera, — i.e.,  with 
full  power  or  freedom  to  act  for  his  principal  in  all  causes  or 
matters, — or  only  simpliciter, — i.e.,  without  such  full  power.' 

4.  Some  are  appointed  simpliciter  cum  aliis, — i.e.,  in  such  a 
manner  as  to  be  obliged  to  act  jointly  with  others ;  others, 
in  solidum.  Where  two  or  more  procurators  are  appointed 
simpliciter  for  the  same  affair  or  judicial  case,  they  cannot 
proceed  individually,  but  must  act  conjointly.  But  if  they 
are  deputed  in  solidum,  each  can  act  separately  from  the 
others,  in  the  manner  prescribed  by  Pope  Boniface  VIII.'' 
Here  we  may  observe  that  the  law  of  the  Church  does  not 
restrict  a  person  to  one  procurator,  but  allows  him  to  appoint 
several  for  the  same  cause.     (Ex  cap.  6,  De  Proc,  in  6°.) 

5.  Finally,  there  are  principal  procurators  [procuratores  prin- 
cipales)  and  mere  substitutes  [procuratores  S7ibstitutt),  accord- 
ing as  they  are  appointed  either  by  the  principal  himself  or 
merely  by  his  procurator. 

759-  Q-  Who  can  appoint  a  procurator  for  himself  ? 

'  De  Angelis,  1.  i.,  t.  38;!.  i.  p.  ii.,  p.  352.        '  Cap.  6,  de  Procurat.  in  6°  (i.  19). 


Various  Persons  ivho  usually  take  part  m  Trials.  47 

A.  As  a  general  rule,  any  person  whatever,  who  is  not 
forbidden  by  law,  can  appoint  a  procurator  to  act  in  his 
stead,  and  that  even  though  he  be  present  himself.  The 
reason  is  that  everybody  can  do  through  others  what  he 
can  do  in  person,  unless  the  law  forbids  it.'  Now  by  the 
law  of  the  Church  persons  under  major  excommunication 
are  forbidden  to  appoint  procurators  to  act  for  them  as 
plaintiffs  in  judicial  proceedings,  for  the  reason  that  they 
cannot  themselves  act  as  such  in  person.^  We  say,  as  plain- 
tiffs;  for  they  not  only  can,  but  should,  appoint  procurators 
to  act  as  defendants  for  them.  For  the  other  persons  who 
are  disqualified,  see  Schmalzgrueber,  1.  c,  n.  4. 

760.  Q.  What  persons  can  be  appointed  procurators? 

A.  All  those  who  are  capable  of  managing  affairs,  and 
are  otherwise  not  expressly  excluded  by  law.  Now  the  law 
of  the  Church  excludes  as  procurators  ad  lite s  or  in  judicial 
matters,  among  other  persons,  {a)  those  who  are  under  major 
excommunication,  {b)  or  not  yet  twenty-five  years  old.* 
Laymen  may  be  appointed  procurators  in  spiritual  causes, 
provided  they  exercise  a  simplex  minister iuni,  but  no  juris- 
diction or  administration  proper.* 

761.  Q.  In  what  causes  or  matters  can  procurators  be 
appointed  to  act  for  others  ? 

A.  In  all  causes,  where  it  is  not  expressly  prohibited  by 
law.  For,  as  canonists  say,  the  edictunt  de  procnratore  constit- 
nendo  est  prohibitoriiim.  Hence  the  rule  holds,  in  our  case, 
that  whatever  is  not  expressly  forbidden,  is  granted.  And 
this  is  true  of  judicial  causes, — i.e.,  matters  adjudicated  in 
court, — as  well  as  of  extrajudicial  affairs.*  We  say,  where  it 
is  not  expressly  forbidden  by  law.  Now,  does  the  law  of  the 
Church,  in  some  cases,  expressly  forbid  the  appointment  of 

*  De  Angelis,  1.  c,  p.  353.  ^  Supra,  n.  751;  cap.  15,  de  Proc,  (i.  38). 
^  Cap.  5,  de  Proc.  in  6°  (i.  19). 

*  Cap.  I,  de  Procurat.  in  6°  (i.  19);  De  Angelis,  1.  c,  p.  355. 

*  De  Angelis,  1.  c,  p.  356. 


48    Va7'ioiis  Persons  who  nsimlly  take  part  in  Trials. 

a  procurator,  whether  extrajudicial  matters  or  judicial 
causes  ?  Space  permits  us  here  to  answer  only  in  regard  to 
procurators  for  judicial  causes.  Concerning  these,  it  may  be 
said  that  the  law  of  the  Church  makes  no  exclusion  what- 
ever ;  in  other  words,  canon  law  does  not  forbid  a  principal 
to  be  represented  in  the  ecclesiastical  courts  by  a  procura- 
tor, in  any  cause  whatever,"  civil  or  criminal.  As  to  civil 
causes,  this  is  certain.  As  to  criminal  causes,  it  is  true,  as 
we  have  seen,'  that  where  the  punishment  to  be  inflicted  is 
corporal,  or  greater  than  exile,  no  procurator  can  be  ap- 
pointed. But,  as  De  Angelis"  observes,  ecclesiastical  courts 
do  not  inflict  death  or  mutilation.  Hence,  procurators  are 
to  be  admitted  before  ecclesiastical  courts  in  all  criminal 
causes,  namely,  where  dismissal  from  parish  or  benefice,  ex- 
communication, suspension,  and  the  like,  are  to  be  inflicted.' 
However,  it  must  not  be  forgotten  that,  as  we  have  already 
said,*  the  judge  (we  speak  of  the  ecclesiastical  judge)  can  for 
just  cause  command  the  personal  appearance  of  the  princi- 
pal, and  thus  exclude  the  procurator. 

As  to  the  application  of  these  principles  to  contending 
parties  in  the  United  States,  before  Commissions  of  Investi- 
gation, see  n.  755. 

762.  Q.  How  are  procurators  appointed  ? 

A.  The  procurator  for  the  plaintiff  must  on  pain  of  nul- 
lity, as  a  rule,  have  a  mandate  or  authorization  (called  in 
secular  courts,  power  of  attorney)."*  This  mandate  should 
state  the  name  of  the  principalorappointer  of  the  procurator 
appointed,  of  the  plaintiff  against  whom,  and  of  the  judge  be- 
fore whom  the  proceedings  are  instituted  ;  the  nature  of  the 
matter  or  cause  entrusted  to  the  procurator,  the  day  and 
year.  Finally,  the  principal  should  state  that  he  will  ratify 
whatever  is  done  by  the  procurator.*     We  have  said,  for  the 

'  Supra,  n.  754.       '  L.  c,  p.  360.  ^  Ex  cap.  5,  De  Procur.  (i.  38). 

^  Supra,  n.  754.       *  Ex  cap.  4,  De  Proc.  (i.  38).       *  De  Angelis,  1.  c,  p.  361. 


Various  Persons  who  usually  take  part  in  Trials,  49 

plaintiff;  for,  absolutely  speaking,  a  person  may  act. as 
procurator  for  an  absent  defendant,  even  without  an  express 
authorization.  We  say,  moreover,  as  a  rule ;  for  there  are 
several  exceptions,  namely,  among  others:  i.  Where  the  pro- 
curator is  one  who  is  accustomed  to  act  as  procurator  for 
parties,  and  brings  with  him  the  documents  or  papers  relat- 
ing to  the  case  ; '  2.  If  he  acts  for  others  in  a  cause  where 
he  is  a  co-principal — i.e.,  where  he  is  jointly  interested  with 
them.^  Here  it  must  be  observed  that  in  all  cases  where  a 
procurator  acts  without  an  express  mandate,  whether  it  be 
for  a  plaintiff  or  defendant,  he  must  give  security  that  the 
principal  will  ratify  whatever  has  been  done,  or,  to  use  a 
technical  phrase,  debet  cavere  de  rato.^ 

"jGt,.  Powers  of  Procurators. — Whatever  the  procurator 
does  within  the  limits  of  his  mandate  is  valid,  whether  it  be 
beneficial  or  injurious  to  the  principal,  according  to  the  rule: 
"Qui  facit  per  ahum,  est  perinde  ac  si  faciat  per  se  ipsum.* 
Again,  the  judicial  procurator  becomes  the  dominus  litis,  and 
that,  generally  speaking,  as  soon  as  the  litis  contestatio  has 
taken  place  ; '"  or  where  the  procedure  or  trial  is  summary, 
and  no  litis  contestatio  required,  as  soon  as  he  has  begun  to 
act  in  the  principal  matter,  or  has  taken  the  first  steps  in  the 
cause/  Once  he  has  become  the  dominus  litis,  he  can  appoint 
a  substitute.  We  say,  the  judicial  procurator  becomes  the 
dominus  litis ;  in  other  words,  he  takes  the  place  and  as- 
sumes the  responsibilities  of  the  principal  himself.  Hence, 
the  citations  and  the  like  are  to  be  directed  to  him,  and  not 
to  the  principal.'  Herein,  by  the  way,  we  again  see  how  a 
procurator  differs  from  an  advocate.  The  latter,  as  such, — 
i.e.,  unless  he  acts  also  as  procurator, — never  becomes  the 

1  Cap.  34,  De  Off.  Del.  (i.  29). 

^  L.  Commune  2,  C.  De  Cons.  ej.  lit.  (iii.  40).      ^  Dg  Angelis,  1.  c,  p.  362. 

■*  Reg.  72  Juris,  in  6  (v.  12);  Devoti,  1.  3,  t.  3,  §  4. 

*Cap.  I,  De  Procur.,  in  6°  (i.  19).  f  De  Angelis,  1.  c,  p.  354. 

'  Leur.,  For.  Eccl.,  1.  i.,  t.  38,  q.  loio. 


50   Various  Persons  who  usually  take  part  i7i  Trials. 

domimis  litis,  but  merely  assists  him  ;  hence  the  mandates  of 
the  court  (in  our  case,  the  ecclesiastical  court)  are  never 
directed  to  him,  but  to  his  client,  or  the  latter's  procurator. 

764.  Q.  How  does  the  office  of  a  procurator  expire  ? 

A.  Chiefly  as  follows:  i.  By  the  mutual  consent  of  the 
principal  and  his  procurator,  and  that  even  re  non  amplius 
integra,  though  without  prejudice  to  a  third  party.  2.  By 
revocation  of  the  power  of  attorney  or  procurator.'  The 
revocation,  however,  once  the  res  is  no  longer  integra,  is 
valid  only  when  made  for  just  cause,  which  must,  moreover, 
be  approved  by  the  judge  when  there  is  question  of  judicial 
procurators.^  3.  If  the  principal  wishes  to  conduct  the 
cause  himself.'  For  the  other  modes,  see  Schmalzgrueber, 
1.  c,  n.  42-48. 

765.  Q.  What  special  remarks  apply  to  procurators  of 
communities,  or  ecclesiastical  corporations,  such  as  monas- 
teries, convents  of  nuns,  colleges  of  students,  and  confrater- 
nities ? 

A.  Individuals,  as  we  have  seen,  may  as  a  rule  plead  their 
causes  personall}^ — i.e.,  act  personally  as  plaintiffs  or  defend- 
ants in  ecclesiastical  courts.  But  moral  bodies,  or  commu- 
nities, are  obliged  to  do  so  by  proxy,  and  consequently  must 
appoint  procurators,  who  are  called  syndici,  to  prosecute  and 
defend  their  rights  in  ecclesiastical  courts.  Otherwise,  as  is 
evident,  these  bodies  could  not  prosecute  their  rights  at  all. 
For  it  is  practically  impossible  for  an  entire  body — i.e.,  for 
all  the  members  of  such  body — to  act  collectively  or  simul- 
taneously in  such  matters.  A  community  or  corporate  body 
can  appoint  not  merely  one,  but  several  procurators  for 
itself.  Where  several  are  appointed,  each  one  is  considered 
as  appointed  in  solidum,  even  though  this  is  not  expressed  in 
the  mandate,  contrary  to  what  happens  in  the  case  of  proc- 

'  Cap.  2,  De  Proc,  in  6°  (i.  19). 

*  L.  Post  litem  17  ff.,  De  Procurat.  (iii.  3);  De  Angelis,  1.  c,  p.  366. 

'  Cap.  8,  t.  c,  in  6°. 


Various  Per  softs  who  usttally  take  part  in  Trials.   5 1 

urators  of  individuals.'  These  procurators  or  syndici  are 
cliosen  by  election — i.e.,  they  are  elected  by  the  community 
or  corporation  they  are  chosen  to  represent.  All  the  mem- 
bers of  such  community  or  corporation,  who  have  the  right 
to  vote,  must  be  called  to  the  election.  However,  it  is  suf- 
ficient that  two  thirds  of  all  the  voters  are  present.''  A  ma- 
jority vote  elects.  In  some  religious  orders,  however,  the 
procurator  is  simply  appointed  by  the  superior,  not  elected. 
The  right  to  appoint  the  procurators  of  convents  of  nuns 
belongs,  de  jure  ordinario,  to  the  bishop.  We  say,  de  jure 
ordinario  ;  for  sometimes,  either  by  the  act  of  foundation,  or 
custom,  or  the  Rule  as  properly  approved,  it  belongs  to  the 
nuns  themselves,  or  even  to  laics." 


Art.  IV. 
Advocates  (Advocat't). 

766.  When  contending  parties  are  unable  to  settle  a  dis- 
puted matter  in  an  amicable  manner,  and  are  consequently 
about  to  bring  the  case  into  court  (in  our  case,  ecclesiastical 
court)  for  adjudication,  the  first  step  to  be  taken  by  them  is 
the  selection  of  an  able  advocate  (as  they  rarely  plead  their 
cause  themselves) ;  so  much  so,  that  when  a  party,  owing  to 
poverty,  or  the  power,  position,  or  authority  of  the  opposing 
party,  or  other  cause,  is  unable  to  procure  an  advocate,  the 
ecclesiastical  judge  (for  we  speak  of  ecclesiastical  courts)  is 
bound  to  obtain  or  appoint  one  for  him,  as  is  enacted  by 
Pope  Honorius  III.* 

767.  Now,  an  advocate  {advocaius,  patro?ius  causae,  orator, 
causidicus;  in  secular  courts,  lawyer,  counsellor-at-law)  is  one 
who  conducts  the  case  in  court   for  a   client   present,  and 

'  Schmalzg.,  1.  i.,  t.  39,  n.  5;  cf.  supra,  n.  758  (4). 

^  L.  3  ff. ,  Quod  cujusc.  univ.  nom.  (iii.  4). 

3  Craiss.,  n.  5641.         ^  Cap.  i,  De  Off.  Jud.  (i.  32);  Reiff.,  1.  i.,  t.  37,  n.  i. 


52    Various  Persons  who  tisually  take  part  hi  Trials. 

• 

assists  him  by  his  counsel,  authority,  and  otherwise.'  To 
act  as  advocate  {postulare),  therefore,  means  to  discuss  the 
merits  of  the  case — i.e.,  to  explain  in  court,  or  before  the 
judge  or  judicial  body  composing  the  court,  the  arguments, 
whether  of  law  or  fact,  militating  in  favor  of  one's  client.* 
The  office  of  an  advocate  is  called  by  canonists  inimus 
publicmn  et  honorificum.  Consequently,  only  able  and  es- 
teemed persons  are  allowed  to  exercise  it.'  The  difference 
between  advocates  and  procurators  has  already  been  suffi- 
ciently explained  by  us,  in  the  preceding  article  on  procura- 
tors. 

768.  Q.  Who  can  be  or  act  as  advocate  in  ecclesiastical 
courts  ? 

A.  All  those  who  are  not  expressly  prohibited  by  canon 
law.  The  reason  is,  that  the  edictum  de postiilando  {i.e.,  of  act- 
ing as  advocate)  \$,  prohibitorium,  no  less  than  that  de  prociira- 
tore  constituendo.^  Now,  what  persons  are  expressly  excluded 
by  the  law  of  the  Church  ?  Chiefly  these:  i.  Persons  who  are 
notably  infamous.  They  can,  indeed,  act  as  advocates  for 
themselves,  but  not  for  others.*  Persons  who  are  infamous 
indeed,  but  not  notably  so,  can  be  advocates,  not  only  for  them- 
selves, but  also  for  their  relatives,  minors  and  wards,  but  not 
for  anybody  else."  2.  Excommunicates  ;  ^  for,  as  we  shall  see 
when  we  come  to  speak  of  censures,  they  are  cut  off  from  asso- 
ciation with  the  faithful,  even  in  forensic  or  judicial  matters. 
3.  Monks  or  regulars,  except  in  favor  of  their  monastery, 
and,  even  then,  only  with  the  consent  of  the  superior.*  The 
Franciscans  or  Friars  Minor,  however,  are  an  exception  even 
to  the  latter  privilege ;  for  they  cannot  act  as  advocates  for 
their  monastery,  even  with  the  consent  of  their  superior.' 

'  Schmalzg.,  1.  i.,  t.  37,  n.  2;  De  Angelis,  1.  i.,  t.  37,  n.  r. 

«  Reiff.,  1.  c,  n.  4.  »  lb.,  n.  6.  *  lb.,  n.  8. 

»  Leg.  I  ff.,  De  Postulando  (iii.  i).  «  lb. 

'  Cap  8.,  De  Sent.  Excom.,  in  6°  (v.  11). 

8  Cap.  2,  De  Postul.  (i.  37).         ■  »  Clem.  Exivi  i,  De  V.  S.,  ^  Proinde  (v.  11). 


Various  Persons  who  tisually  take  part  in  Trials.  53 

As  to  whether  secular  ecclesiastics  can  be  advocates,  we 
shall  see  below.  It  is  not  necessary  here  to  say  that  nuns 
or  sisters  cannot  be  advocates.  For  women,  and  a  fortiori 
nuns,  are,  generally  speaking,  disqualified  for  this  office.'  4. 
A  judge  cannot  be  advocate  in  the  same  cause  in  which  he 
is  to  act  as  judge.''  5.  Those  who  are  not  sufficiently  versed 
in  the  law.'  In  order  to  exclude  persons  who  are  ignorant 
of  the  law  or  otherwise  unfit,  the  secular  courts  at  the 
present  day  allow  only  those  to  act  as  advocates  who  have 
passed  the  prescribed  examination  and  received  the  requisite 
diploma.  In  ecclesiastical  courts,  however,  no  such  exami- 
nation or  diploma  is  required  by  the  general  law  of  the 
Church." 

769.  We  say,  by  the  general  law  of  the  CJuircJi ;  for  by  par- 
ticular or  local  law  such  examination  or  diploma,  or  at  least 
a  simple  approbation,  may  be  necessary.  Thus,  in  fact,  so 
far  as  concerns  the  United  States,  the  S.  C.  de  P.  F.,  in  its 
answer  to  the  questions  {dubid)  addressed  to  it  by  bishops  of 
this  country,  concerning  the  meaning  of  the  Instruction  of 
July  20,  1878,  expressly  declares  that  the  advocate  should  be 
approved  by  the  bishop.  It  is  scarcely  necessary  to  observe, 
in  passing,  that  this  approbation  cannot  be  refused  arbi- 
trarily. For  the  S.  C.  de  P.  F.,  in  the  above  answer  AdDubia, 
gives  the  accused  rector  (and  by  implication  all  other  defend- 
ants or  plaintiffs,  as  the  case  may  be)  the  full  right  to  choose 
his  own  advocate,  subject  only  to  the  approval  of  the  bishop. 
The  words  of  the  Sacred  Congregation  are :  "  Liberum 
cuique  Rectori  est  aliuin  Sacerdotem  ab  Episcopo  tamen  appro- 
bandum  secum  habere  coram  Consilio,  sive  ad  simplicem  adsis- 
tentiam,  sive  ad  suas  animadversiones  aut  defensionem  exhi- 
bendam."^  Hence  the  right  of  the  bishop  to  approve  cannot 
be  used  in  such  a  manner  as  to  destroy  the  right  of  the  rector 

•    '  L.  I  ff.,  cit.  2  L   6,  C.  de  Postul.  (ii.  6).  ^  l.  2  ff.,  tit.  cit. 

*  Bouix,  De  Jud.,  vol.  i.,  p.  237;  De  Angelis,  1.  c,  n.  2. 
5  S.  C.  de  P.  F.,  Ad  Dubia,  §  iv. 


54    Various  Persons  who  usually  take  part  m  Trials, 

or  defendant  to  choose  an  advocate.  In  other  words,  the 
approbation  can  be  refused  only  for  solid  reasons — namely, 
{a)  when  the  advocate  is  ignorant  of  the  law  of  the  Church ; 
{b)  or  has  a  bad  reputation ;  (c)  or  in  the  cases  already  men- 
tioned under  n.  768.  The  best  mode  of  settling  disputes  that 
may  not  unfrequently  .arise  on  this  head  would  seem  to  be 
to  adopt  the  plan  at  present  in  vogue  in  most  of  the  ecclesi- 
astical courts  of  Europe — that  is,  to  have  a  fixed  method  by 
which  able  ecclesiastics  will  be  permanently  approved  as 
advocates,  so  that,  when  occasion  offers,  a  rector  will  be 
able  to  select  an  advocate  from  this  number  without  being 
obHgcd  to  ask  for  the  bishop's  approbation. 

770.  Q.  Can  secular  ecclesiastics  act  as  advocates  in 
ecclesiastical  courts  ? 

A.  We  premise  :  i.  We  say,  in  our  question,  secular  eccle- 
siastics ;  for  we  have  already  seen  that  monks,  and  conse- 
quently regular  ecclesiastics,  cannot  be  advocates.*  2.  We 
say,  secondly,  in  ecclesiastical  courts,  thus  leaving  out  the 
question  whether  they  can  do  so  also  in  secular  courts — 
which  is  of  no  particular  consequence  in  this  country,  where 
ecclesiastics  never  aspire  to  such  positions.  3.  Again,  a 
distinction  must  be  made  between  secular  ecclesiastics  who 
are  priests,  and  those  who  are  only  in  inferior  orders — namely, 
deacons,, subdeacons,  and  those  in  minor  orders. 

771.  Having  premised  this,  we  now  answer:  All  canon- 
ists agree  that  secular  ecclesiastics,  even  though  in  sacred 
orders,  provided  they  be  not  yet  priests,  can  freely  act  as 
advocates  and  procurators  in  ecclesiastical  courts.  The 
only  question  is:  Can  priests  also  do  so?  There  are  two 
opinions:  the  common  opinion,  followed,  among  others,  by 
Schmalzgrueber,^  Reiffenstuel,'  and  Bouix,*  is,  that  they  can- 
not, except  in  four  cases,  namely,  {a)  in  their  own  causes — 
i.e.,  for  themselves ;  {b)  for  their  church  ;  {c)  or  persons  re- 

'  Supra,  n.  768  (3).  2  L.  :.,  t.  37,  n.  10. 

^  L.  i.,  t.  37,  n.  18.  ■*  De  Jud.,  vol.  i.,  p.  203,  sq. 


Various  Persons  who  usually  take  part  in  Trials.   55 

lated  to  them,  to  the  fourth  degree  of  consanguinity ;  {d)  or 
for  personae  miserabiles,  such  as  the  poor,  orphans,  widows/ 
This  opinion  is  founded  chiefly  on  the  cap.  3,  De  Postul.,  which 
says :  "  Cum  sacerdotis  sit  ofificium  nuUi  nocere,  omnibus 
autem  velle  prodesse,  nonnisi'  pro  seipso  .  .  .  sibi  licitum 
est  postulare."  One  of  the  reasons  assigned  by  the  advo- 
cates of  this  opinion  is  the  one  intimated  in  the  above  caput 
— namely,  that  a  priest,  by  acting  as  advocate  even  in  eccle- 
siastical courts,  would  be  instrumental  in  inflicting  pain  and 
penalties  upon  others — i.e.,  upon  those  of  the  opposing 
party,  which  is  not  in  harmony  with  his  priestly  office. 

772.  The  affirmative  is,  however,  held  by  such  eminent 
canonists  as  Benedict  XIV. ,^  De  Angelis,'  and  others.  Thus 
Pope  Benedict  XIV.  expressly  says :  "  Saccular!  autem 
clerico  minorum  ordinum,  etiam  Beneficiato,  item  sub- 
diacono"  (et  diacono),  "  immo  sacerdoti,  Jus  ipsum  canonicum 
permittit  ut  se  advocatos  in  tribunalibus  quidem  ecclesias- 
ticis  libere  exhibeant."  In  fact,  the  above  cap.  3,  which 
those  who  hold  the  negative  on  this  question  quote  in  their 
favor,  and  which  prima  facie  seems  certainly  in  their  favor, 
can  be  construed  to  mean  that  priests  are  forbidden  to  act 
as  advocates  in  secular,  but  not  in  ecclesiastical  courts.  Be- 
sides, as  Bouix  '  himself  well  remarks,  it  is  far  more  proper, 
and  becoming  the  priestly  dignity  that  a  priest  cited  before 
the  bishop's  tribunal  should  be  defended  by  an  advocate 
who  is  a  priest,  rather  than  by  an  inferior  ecclesiastic,  or 
even  a  layman,  whom  he  would  nevertheless  have  to  em- 
ploy as  his  advocate  in  case  he  were  forbidden  to  select  his 
advocate  from  among  his  fellow-priests.  Moreover,  as  De 
Angelis  '  says,  nobody  can  be  better  adapted  than  ecclesi- 
astics or  priests  to  act  as  advocates  in  ecclesiastical  tribunals, 
particularly  by  reason  of  the  nature  of  the  questions  there 


'  Cap.  I.  3,  De  Post.  (i.  37).  2  De  Syn.,  1.  13,  c.  10,  n.  12. 

^  L.  i.,  t.  37,  n.  2.  ^  L.  c,  p.  204.  5  L_  (..,  p.  343. 


56    Various  Persons  who  tisiLally  take  part  in  Trials. 

tried  and  decided — namely,  of  ecclesiastical  law,  in  which 
ecclesiastics  are  supposed  to  be  well  versed.  Hence,  in 
accordance  with  this  opinion,  we  conclude  with  De  Angelis 
that  ecclesiastics,  even  though  they  be  priests,  can  freely 
and  in  all  causes  act  as  advocates  in  ecclesiastical  courts. 
This  is  the  general  law  of  the  Church.  It  is  therefore  in 
full  accord  with  this  law  that  the  S.  C.  de  P.  F.,  in  its 
answer  above  quoted  Ad  Diibia,  declares  that  in  the  United 
States  the  accused  rector  can  select  a  priest  as  his  advocate 
before  the  Commission  of  Investigation. 

773.  Here  the  question  may  be  asked :  Can  and  should 
an  advocate  be  allowed  to  assist  a  defendant  (or,  as  the  case 
may  be,  a  plaintiff)  before  a  Commission  of  Investigation  in 
the  United  States,  not  only  when  there  is  question  of  the  dis- 
missal of  a  rector,  but  also  in  other  cases — v.g.,  where  there 
is  question  merely  of  suspending  or  otherwise  punishing  an 
ecclesiastic,  even  though  he  be  not  a  rector?  The  reason 
of  the  question  is,  that  the  above  declaration  of  the  Propa- 
ganda speaks  only  of  rectors,  not  of  other  priests  or  eccle- 
siastics. 

774.  We  are  of  opinion  that  all  ecclesiastics  whatever, 
whether  they  be  rectors  or  not,. who  are  defendants  (the 
same  holds  of  plaintiffs)  before  a  Commission  of  Investiga- 
tion, in  criminal  or  disciplinary,  or  even  purely  civil,  causes 
or  matters,  have  a  right  to  be  assisted  by  an  advocate.  For, 
as  we  have  seen,'  the  cdictum  de  postulando  is  proJiihitoritim. 
Hence,  by  the  general  law  of  the  Church,  an  advocate  is  to 
be  admitted  before  ecclesiastical  tribunals  in  all  causes  zvhat- 
evcr,  where  it  is  not  expressly  prohibited  by  law.  Now,  by 
the  law  of  the  Church,  the  admission  of  an  advocate,  at  least 
for  the  defendant,  is  not  only  never  refused,  but  is  positively 
required.  Thus  De  AngeHs'  expressly  writes :  "Advertimus 
non  esse  confundendam  positionem  procuratoris  cum  defeti- 

'  Supra,  n.  768.  »  L.  i.,  t.  38,  n.  5,  in  fine. 


Various  Persons  who  usually  lake  part  in  Trials.   57 

sionc  advocati,  qjtae  nunquam  ncgatiir,  immo  positive  exigitiir!' 
This  holds  true  in  such  a  manner  that  where  a  htigant  can- 
not procure  an  advocate,  the  judge,  as  we  have  seen,'  is 
bound  to  provide  one  for  him ;  ^  so  much  so,  that  the  litigant 
or  defendant  cannot  be  condemned  for  contempt  or  in  con- 
tumaciam so  long  as  he  has  not  been  able  to  find  a  suitable 
advocate.  Time  must  be  given  him  until  he  has  found  an 
advocate,  or,  if  he  cannot  do  so,  until  the  court  has  appointed 
one  for  him.'  Moreover,  as  it  is  allowed  in  ecclesiastical 
courts  to  have  several  procurators,  as  we  have  shown,  so 
also,  it  seems,  is  it  permitted  to  have  several  advocates  for 
the  same  cause,  especially  for  the  defence,  which  should 
never  be  impaired. 

775.  Hence,  by  the  general  law  of  the  Church,  every 
defendant  before  a  Commission  of  Investigation  in  the  United 
States,  no  matter  whether  he  be  a  rector  or  not,  whether  the 
cause  be  criminal  or  not,  has  a  right  to  an  advocate.  But 
is  this  right,  guaranteed  though  it  is  by  the  general  law, 
restricted  by  the  S.  C.  de  P.  F.,  in  its  declarations  to  the 
Dnbia  of  American  bishops  ?  We  think  not.  It  is  true  that 
the  Propaganda,  in  the  above  declarations,  mentions  only 
rectors  as  having  the  right  to  select  an  advocate.  But  it  is 
also  true  that  this  same  Sacred  Congregation,  in  its  Instruc- 
tion of  July  20,  1878,  distinctly  intimates  that  the  proceed- 
ings as  prescribed  in  the  case  of  rectors  shall  serve  as  a 
model  for  the  other  cases.*  Besides,  the  assistance  of  an 
advocate  is  one  of  the  best  means  of  defence.  Now,  by  the 
above  Instruction  the  defendant  is  to  have  the  full  right 
{facta  ipsi  plena  facilitate)  of  defending  himself.  So  far,  then, 
from  excluding  advocates  in  the  cases  under  discussion,  the 
Sacred  Congregation  plainly  admits  them. 

yy6.  Duties  of  Advocates. — While,  as  we  have  seen,  the 

'  Supra,  n.  766.  ^  l.  i,  §  4,  Ait  Praetor  ff.,  De  Postul.  (iii.  i). 

^  Cap.  I,  Ut  lite  non  cont.  (i.  6);  Schmalzg.,  1.  i.,  t.  37,  n.  17. 

*  Instr.  S.  C.  de  P.  F.,  20  Julii,  1878,  §  Commissionis  ita;  §  In  causis  cogn. 


58    Various  Persons  who  tisually  take  part  in  Trials. 

advocate's  is  an  honorable  and  public  office,  it  has  also 
grave  obligations  annexed.  These  duties  have  reference 
either  to  the  cause  undertaken  or  the  honorary.  I.  Duties 
of  advocates  with  regard  to  the  majiagenient  of  the  cause. — i. 
An  advocate  must  have  the  proper  knowledge.  And  he  is 
guilty,  speaking  in  general,  of  a  grievous  sin  if  he  under 
takes  a  case  without  sufficient  learning.  2.  He  cannot 
engage  in  a  case  which  he  knows  to  be  unjust  or  bad.'  If 
he  nevertheless  does  so  knowingly  or  through  culpable 
ignorance,  he  is  bound  to  compensate  both  his  client  (unless 
he  informs  him  of  the  injustice  of  his  cause)  and  the 
opposing  party  for  any  damage  or  loss  they  may  have 
sustained.  This  rule,  however,  admits  of  an  exception  in 
favor  of  defendants  in  crimmal  causes.  For  it  is  always  law- 
ful to  defend  an  accused  person,  also  in  ecclesiastical  courts, 
even  when  the  advocate  knows  him  to  be  guilty.  The 
reason  is,  that  the  accused  is  never  obliged  to  suffer  punish- 
ment unless  he  is  juridically  convicted.  Hence  he  can  either 
personally  or  through  an  advocate  try  to  evade  punishment 
till  properly  convicted.^  3.  It  is  not,  however,  required  that 
he  should  be  certain  of  the  justice  of  the  cause  ;  otherwise 
he  could  never  engage  in  any  cause,  since  nearly  all  causes 
brought  before  judicial  tribunals  proceed  from  doubtful 
facts  or  matters.  It  is,  therefore,  sufficient  that  the  cause 
should  have  good  or  probable  reasons  in  its  favor. 

'jj'j.  4.  Once  he  has  undertaken  a  case  he  should  defend 
or  conduct  it  faithfully.  Hence  {a)  he  should  diligently 
study  both  the  facts  and  the  law  in  the  case,  so  as  to  be 
fully  prepared  when  he  appears  before  the  judge.'  And  if, 
through  his  want  of  skill  or  diligence,  he  loses  the  case,  he  is 
bound  in  conscience  to  compensate  his  client.*  ib)  He  should 
not  reveal  the  secrets  or  proofs  of  his  client  to  the  opposing 
party.     Hence  he  cannot  be  advocate  for  both  parties  in  the 

'  L.  14,  C.  §  Patroni  (iii.  3).  «  Craiss.,  n.  5648. 

*  L.  14,  §  I,  Patroni,  C.  de  Judiciis  (iii.  i).  ^  Schmalzg.,  1.  1.,  t.  37,  n.  17. 


VciJ'ioiis  Persojis  who  iLsiially  take  part  in  Trials,   59 

same  cause,  ic)  He  should  cite  no  false  law  nor  wrongly 
interpret  a  true  law ;  nor  should  he  make  use  of  any  false 
arguments  or  documents  to  sustain  his  case  ;  nor  should  he 
produce  false  or  corrupt  witnesses.  Otherwise  he  is  guilty 
of  the  crimen  falsi.''  He  can,  however,  employ  arguments 
and  the  like  resting  on  mere  probability,  {d)  In  court  he 
should  not  indulge  in  personalities.  His  arguments  should  be 
based  upon  laws  and  facts,  rather  than  upon  invectives  against 
or  abuse  of  the  opposing  party.''  {c)  Finally,  he  should  con- 
duct the  cause  to  the  end,  or  to  the  final  sentence,  and  not 
give  it  up  against  the  will  of  his  client.'  Lastly,  an  advocate 
(we  speak  of  ecclesiastical  advocates)  who  is  approved  by 
pubHc  authority  as  advocate,  cannot,  without  just  cause, 
refuse  to  undertake  the  case  of  one  who  cannot  get  an 
advocate,  if  the  judge  requires  him  to  do  so. 

778,  II.  Proper  honorary. — It  is  certain  that  ecclesiastical 
advocates,  .no  less  than  secular,  can  demand  a  fee  for  their 
services,  and  that  even  though  no  agreement  to  that  effect 
has  been  made  beforehand.  For,  as  the  cap.  16,  De  Praescr., 
says:  "Nemo  suis  stipendiis  cogatur  militare."  ^  Hence, 
before  undertaking  a  case,  he  can  make  a  contract  with  his 
client  as  to  the  honorary  to  be  given  him.  Where  a  fixed 
honorary  is  established  by  law  or  custom,  the  advocate 
should  not  go  beyond  it.  Where  no  such  fee  is  fixed  by  law 
or  custom,  he  can  demand  what  is  regarded  by  good  men  a 
fair  compensation,  considering  the  amount  of  his  labor,  his 
position,  his  ability,  and  the  difficulty  of  the  case. ' 

779.  Can  the  advocate  make  an  agreement  with  his 
client,  obliging  the  latter  to  pay  him,  over  and  above  the 
ordinary  fee,  also  a  special  honorary  (called  Pahnar'min  by 
canonists)  if  he  wins  the  case  ?     He  can  do  so  after  the  case 

'  L.  14,  C.  cit.  ^  L.  6,  §  I,  Cod.  de  Postul.  (ii.  6). 

^  L.  13,  I  g,  Cod.  de  Judic. 

■*  Schmalzg.,  1.  c,  n.  12;  De  Angelis,  1.  c,  n.  3,  p.  348. 

*  L.  I;  §  10  ff.,  De  extr.  cogn.  (50.  13). 


6o   Vaj'iozis  Persons  who  usually  take  part  in  Trials, 

is  finished,  provided  always  that  this  palmarium  or  special 
fee  be  moderate.'  But  he  cannot  do  so,  according  to 
Schmalzgrueber,''  before  the  case  is  finished.  Finally,  he  can- 
not enter  into  a  contract  with  his  client,  binding  the  latter 
to  give  him,  as  his  fee,  a  share  or  part  {quota  litis)  of  what 
will  be  adjudicated  to  him  in  case  of  his  gaining  the  cause.^ 
Note,  what  has  been  said  thus  far  of  ecclesiastical  advocates 
affects,  of  course,  also  ecclesiastical  advocates  before  Com- 
missions of  Investigation  in  the  United  States. 

Art.  V. 

Of  Auditors,  Assessors,  Fiscal  Promoters  and  Advocates,  Secre- 
taries or  Clerks,  and  Messengers  of  Ecclesiastical  Courts. 

780.  Of  these  officials  of   ecclesiastical  courts  we   shall 
speak  later  on,  under  the  head  of  episcopal  curias. 

'  lb.,  §  12.  ^  L.  c,  n.  13.  *  De  Angelis,  1.  c,  p.  349. 


CHAPTER  IV. 

OF   THE    COMPETENT   ECCLESIASTICAL  TRIBUNAL 
{De  Foro  Competcfite  Ecclesiasticd). 

781.  In  ecclesiastical  no  less  than  in  secular  courts,  when 
judicial  proceedings  are  about  to  be  commenced  against  any 
person,  it  is  of  paramount  importance  to  find  out  which  is 
the  foricin  conipctens,  or  what  particular  tribunal  has  compe- 
tence in  the  case.  In  other  words,  it  is  necessary  to  ascer- 
tain the  tribunal  to  which  the  accused  or  defendant  belongs.. 
For  the  general  rule  is  that  the  plaintiff  (in  criminal  causes,, 
the  accuser  or  prosecution)  must  follow  the  forum  to  which, 
the  defendant  is  subject.'  Hence,  even  where  the  plaintiff 
belongs  to  a  different  forum  from  that  of  the  defendant,  he 
has  to  institute  proceedings  before  the  latter's  forum.  Con- 
sequently, it  is  sufficient  for  a  judge,  in  order  to  be  compe- 
tent to  try  a  cause,  to  have  jurisdiction  over  the  defendant, 
and  it  is  not  necessary  for  him  to  have  jurisdiction  also  over 
the  plaintiff.  All  this  follows  from  the  maxim  :  Actor  sequitur 
forum  rei,  which  applies  both  in  civil  and  criminal  causes."^ 
By  the  competent  ecclesiastical  forum,  we  therefore  mean 
the  tribunal  of  the  ecclesiastical  judge  to  whose  jurisdiction 
the  defendant  in  a  cause  is  subject.  Hence,  that  ecclesias- 
tical judge  is  the  competent  judge  {Judex  competens),  to 
whose  jurisdiction  the  defendant  is  subject,  or  before  whom 
the  case  can  be  tried. ^ 

782.  It  will  be  seen  that  the  question  now  under  con- 
sideration is  not,  whether  an  ecclesiastical  court  or  judge  has, 

'  Cap.  5,  8,  De  for.  comp.  (ii.  2);  L.  Juris  2,  C.  de  jurisd.  om.  jud.(iii.  13). 
^  L.  in  criminali  5,  Cod.  (iii.  13).  ^  De  Camillis,  vol.  iii.,  p,  15. 


62  Of  the  Competent  Ecclesiastical  Tribunal. 

speaking  in  general,  power  or  competence  to  try  causes. 
For  every  ecclesiastical  judge,  by  the  very  fact  of  his  being 
a  judge,  has  such  power,  in  general.  The  question  therefore 
is  :  ^Has  such  judge  the  power  to  try  or  hear  this  or  that 
particular  cause,  or  is  he  competent  in  this  or  that  case  ? 
The  question,  therefore,  who  is  the  competent  ecclesiastical 
judge  in  a  cause,  is  the  same  as  this  one  :  Before  what  eccle- 
siastical judge  or  tribunal  is  the  case  to  be  heard  and  decided  ? 

783.  Various  ways  in  zuhich  an  ecclesiastical  court  becomes 
competent — i.e.,  has  power  to  try  a  cause. — In  how  many  ways 
does  an  ecclesiastical  court  or  judge  become  competent  to 
adjudicate  a  cause?  In  other  words,  in  how  many  wa3's  can 
a  person  belong  to  the  forum  of  an  ecclesiastical  judge,  and 
be,  therefore,  triable  by  him?  i.  Ordinarily,  va  these  four 
ways — namely,  by  reason  {a)  of  domicile  of  the  parties  ;  {ii) 
of  contract ;  {c)  the  crime  committed  ;  id')  the  location  of  the 
thing  or  object  in  dispute.  These  ways  are  thus  enumerated 
by  Pope  Gregory  IX.:  "Ratione  dehcti,  sen  contractus, 
aut  domicilii,  sive  rei  de  qua  contra  possessorem  causa 
movetur,  forum  regulariter  quis  sortitur."  *  2.  Extraordina- 
rily, in  the  following  ways  :  {ci)  by  delegation  ;  {p)  proroga- 
tion ;  ic)  compromise  or  arbitration ;  {d)  counter  action ;  {e) 
connection  of  causes.  There  are  consequently,  altogether, 
eleven  ways  or  modes  in  which  an  ecclesiasticai  judge  be- 
comes competent  in  a  cause,  and  in  which,  therefore,  a  per- 
son is  justiciable  by  him.  We  shall  now  briefly  explain  each 
mode. 

784.  I.  Competence  by  reason  of  domicile. — It  is  certain  that 
a  person  falls  under  the  competence  or  forum  of,  and  is 
therefore  triable  by,  the  ecclesiastical  judge  or  court  of  the 
place  where  he  has  his  domicile,  and  that  in  all  causes,  civil 
or  criminal."     Nay,  \):i\^  forum  domicilii  has  concurrent  juris- 


'  Cap.  Licet  20,  De  For.  Comp.  (ii.  2). 

'  Cap. .20,  cit. ;  L.  Gives  7,  C.  De  Incolis  (x.  39);  Schmalzg.,  1.  ii.,  tit.  2,  n.  15, 


Of  the  Competent  Ecclesiastical  T^^ibuiial.  63 

Giction  or  competence  with  all  the  other  ecclesiastical  courts, 
so  that,  even  where  a  person  is  justiciable  out  of  his  own 
domicile, — namely,  as  we  shall  see,  in  the  place  where  he  has 
committed  a  crime,  or  made  a  contract,  or  the  object  in  dis- 
pute is  situate, — he  can  nevertheless  be  tried  also  by  the 
court  of  his  domicile,  provided  one  of  the  other  courts  has 
not  yet  taken  up  the  case.'  This  court  of  domicile  can  pro- 
ceed to  try  a  person  even  when  he  is  out  of  the  place  of  his 
domicile.  For  it  can  summon  him  to  appear  ;  and  if  he 
contumaciously  refuses  to  appear,  proceed  against  him,  as 
being  in  contempt.'^  Nor  can  it  be  objected  that  such  cita- 
tion is  executed  or  served  on  the  defendant  out  of  the  terri- 
tory iv.g.,  diocese  of  bishop)  of  the  judge  issuing  it.  For 
this  serving  of  the  citation,  whether  by  messenger  or  regis- 
tered letter,  is  purely  a  ministerial  act,  and  not  an  act  of 
jurisdiction.^  This  court  or  forum,  therefore,  is  justly  called 
the  natural,  ordinary,  and  chief  forum  of  defendants.  It  has 
full  and  general  competence,  and  can  try  persons,  as  we  have 
seen,  even  for  crimes  committed  out  of  their  domicile. 

785.  What  has  been  said  applies  to  domicile  proper  {donti- 
ciliiun  stride  dictum).  Does  it  also  hold  true  of  quasi-domi- 
cile?*  We  must  distinguish  here  between  crimes  or  acts 
which  are  committed  in  one's  quasi-domicile,  and  those  which 
are  perpetrated  out  of  it.  Now,  it  is  certain  that  a  person 
may  be  tried  and  sentenced  by  the  judge  of  his  quasi-domi- 
cile for  crimes  committed  or  contracts  made  in  such  quasi- 
domicile.  Whether  this  holds  also  in  the  case  of  crimes  com- 
mitted or  acts  done  out  of  such  quasi-domicile,  is  controverted. 
In  common  with  Reiffenstuel,*  Schmalzgrueber,'  and  others, 
we  hold  the  affirmative.'' 

'  Reiff.,  I.  ii.,  t.  2,  n.  28.  «  Cap.  3.  8,  De  Dol.  etCont.  (ii.  14). 

2  Ex  cap.  Romana  i,  De  For.  Comp.  in  6°  (ii.  2);  Reiff.,  1.  c,  n.  30. 

*  For  the  definition  of  and  difference  between  domicile  and  quasi-domicile, 
see  supra,  n.  650.  ^  L.  c,  n.  39. 

*  L.  c,  n.  17.  '  Ex  1.  Sciens  2,  C.  Ubi  de  crim.  agi  op.  (iii.  15). 


64  Of  tJic  Competent  Ecclesiastical  Tribimal. 

786.  We  observe  here,  that  as  Rome  is  the  home  or 
fatherland  of  all  Catholics,  ecclesiastics  (and  even  laics,  in 
ecclesiastical  causes)  can,  when  in  Rome,  be  tried  there,  in 
the  first  instance,  even  though  they  have  not  acquired  a 
domicile  or  quasi-domicile  there,  nor  committed  the  offence 
or  act  there.'  This  holds  true,  even  at  present,  notwith- 
standing that  the  Council  of  Trent '  ordains  that  all  eccle- 
siastical causes  shall  in  the  first  instance  be  tried  and  de- 
cided only  by  the  ordinaries  of  places.  Because  the  Roman 
tribunals  are  "ordinaries  of  places"  for  all  Catholics,  and, 
therefore,  not  excluded  by  the  above  Tridentine  enactment.' 
Hence,  a  defendant  cannot  object  to  being  tried  in  the  Roman 
Curia,  in  the  first  instance.  He  may,  however,  if  he  has 
come  to  Rome  for  some  just  and  necessary  cause,  ask  to  be 
allowed  to  return  home,  and  plead  before  his  ordinary.* 

787.  II.  Compete ftce  by  reasott  of  contract. — The  next  mode 
of  falling  under  the  competence  of  an  ecclesiastical  judge  is 
by  reason  of  contract  {ratione  contractus^.  For,  if  a  person 
makes  a  contract  in  a  place,  he  becomes,  as  a  rule,  triable,  so 
far  as  concerns  the  contract,  in  such  place,  even  though  he 
has  no  domicile  or  quasi-domicile  there. ^  Observe  that  the 
word  contract,  or  agreement,  is  here  used  in  its  widest 
sense,  and,  consequently,  means  not  only  contracts,  or  agree- 
ments proper,  but  also  quasi-contracts,  and  every  other 
action  from  which  springs  an  obligation.*  We  say,  as  a 
rule  ;  for  there  are  a  few  exceptions.  Thus,  the  contracting 
parties  are  not  triable  by  the  judge  of  the  place  where  the 
contract  was  made,  if  they  agreed  that,  in  case  of  difficulties 
arising  out  of  the  contract,  the  trial  should  take  place  else- 
where— v.g.,  before  the  judge  of  the  domicile.  As  a  rule, 
therefore,  the  judge  of   the  place  where  the  contract  was 

'  Cap.  20,  De  For.  Comp.  '  Sess.  24,  c.  20,  De  Ref. 

2  Craiss.,  n.  5689.  ■»  Schmalzg.,  1.  c,  n.  27. 

*  Cap.  Licet  20,  cit. ;  cap.  Romana,  cit.,  §  3;  L.  19,  §  2,  Proinde  fl.,  De  Jud. 
(V.  i.).  *  L.  Omnem  20  ff.,  De  Judic.  (v.  i);  Reiff.,  1.  c,  n.  81. 


Of  the  Competent  Ecclesiastical  Tribunal.         65 

made,  or  the  obligation  contracted,  has  full  power  to  try  an 
ecclesiastic,  even  though  a  stranger,  who  has  entered  into  a 
contract  there,  provided  the  latter  has  not  yet  left  the  place 
or  territory  of  the  judge  of  contract,  or  provided  (in  case  he 
has  already  left)  that  he  was  cited  to  appear  in  court  before 
he  left.'  We  say,  provided  the  latter,  etc. ;  for  if  he  has  left 
before  being  cited,  the  judge  of  contract  cannot  proceed  in 
any  other  way  against  him,  than  by  putting  his  opponent  in 
possession  of  his  goods  or  possessions,  if  he  has  any,  in  the 
place  of  contract ;  but  he  cannot  inflict  any  other  punishment 
upon  him.' 

788.  What  has  been  said  of  the  competence  of  the  eccle- 
siastical judge  ratione  contractus,  applies  also  to  matrimonial 
causes, — namely,  when  a  question  arises  as  to  whether  the 
marriage  was  celebrated  according  to  the  law  of  the  Church, 
or  before  the  propriiis  parocJius,  or  with  the  necessary  wit- 
nesses, or  the  proclamations.' 

789.  III.  Competence  by  reason  of  the  location  of  the  object. — 
It  is  certain  that  a  person  falls  under  the  competence  of  an 
ecclesiastical  judge,  or  forum,  by  reason  of  the  location  of 
the  object  which  is  the  subject  of  the  dispute  {forum  compe- 
tens  ratione  rei  sitae) ;  so  that  a  person  may  be  tried  by  the 
judge  of  the  territory  where  the  object  in  question  is  situ- 
ate,^ even  though  he  is  otherwise  in  no  way  under  his  juris- 
diction.'* This  is  true,  {a)  not  only  with  regard  to  immovable 
property  or  real  estate,  but  also  movable  property,  or  per- 
sonal estate,  provided  the  latter  {i.e.,  the  personal  estate) 
remains  permanently,  or  at  least  for  some  time,  in  the  place, 
and  is  not  there  merely  in  transitu  ;  {b)  even  when  the  party 
is  not  in  the  territory  or  place.  For,  in  the  latter  case, — i.e., 
where  the  party  has  left  the  territory, — the  judge  can  cite 
him  to  appear,  as  though  he  were  still  in  the  place,  and,  if  he 

'  Cap.  Romana,  cit.,  §  3.  2  ^^p   j-j^  .  Rgiff.,  1.  c,  n.  95. 

*  Prael.  in  Sem.  S.  Sulp.,  torn.  3,  n.  658.      *  Cap.  3.  20,  De  For.  Comp.  (ii.  2). 
*  Reiff.,  1.  c,  n.  98;  Schmalzg.,  1.  c,  n.  49. 


66  Of  the  Competent  Ecclesiastical  Trihtnal. 

contumaciously  refuses  to  appear,  he  can  also  put  the  com- 
plainant  in  possession  of  the  object  in  controversy.  Note, 
however,  that  only  a  real,  not  a  personal,  action  can  be 
brought  against  the  defendant  in  the  case.'  In  other  words, 
the  defendant  comes  under  the  competence  of  the  ecclesias- 
tical court  by  reason  of  the  res  sita,  only  so  far  as  concerns 
his  goods,  not  his  person,  as  we  have  already  intimated." 
The  judge,  therefore,  of  the  place  where  the  object  is  located 
cannot  pass  a  sentence  or  issue  any  mandate  which  would 
directly  aflfect  the  person  of  the  defendant  (z^^.,  he  cannot 
excommunicate  or  suspend  him),  but  only  decree  that  the 
thing  or  property  in  dispute  be  given  the  complainant.^ 

790.  Observe  that  by  the  res  sita  are  also  meant  ecclesi- 
astical benefices.  Hence,  where,  v.g.,  an  ecclesiastic  has 
two  benefices,  one  in  his  own  diocese,  the  other  out  of  it, 
he  is  triable,  so  far  as  the  latter  benefice  is  concerned,  by  the 
bishop  of  the  diocese  where  it  is  situate." 

791.  Competence  by  reason  of  crime — ^^  Forum  compete fis 
ratione  criminisT — The  law  of  the  Church  is  that  a  person 
falls  under  the  competence  of,  and  is  therefore  justiciable  by, 
the  ecclesiastical  court  or  judge  of  the  territory  or  place 
where  he  has  committed  the  crime,  even  though  he  be  other- 
wise in  no  sense  subject  to  him.'  In  fact,  it  is  eminently 
proper  that  crimes  should  be  punished  where  they  have 
been  committed,  partly  to  deter  others  from  doing  the  same, 
and  partly  also  because  the  proofs  of  guilt  can  be  more  easily 
obtained  there." 

792.  Q.  How  can  the  ecclesiastical  judge  of  the  territory 
where  the  crime  was  committed  proceed  against  the  person 
perpetrating  the  crime  ? 

'  L.  Actor  3,  C.  Ubi  in  rem.  actio  (iii.  19).  *  Supra,  n.  787. 

^  Ex  cap.  Romana,  cit. ;  Schmalzg.,  1.  c,  51,  53. 

*  Cf.  Prael.  S.  Sulp.,  1.  c,  n.  658;  Devoti,  1.  3,  t.  4,  §  16. 

*  Cap.  14.  20,  De  For.   Comp.  (ii.    2);   L.  quaestiones  i,  et  1.  Sciens   2,  § 
qua  in  C.  Ubi  de  crim.  (iii.  15).  ^  Schmalzg.,  1.  c,  n.  59. 


Of  the  Compete7it  Ecclesiastical  Tribunal.         67 

A.  We  distinguish  :  The  delinquent  is  at  the  time  either 
actually  in  the  place  or  territory  where  he  committed  the 
crime,  or  he  has  left  it,  and  that  either  before  or  after  he  was 
cited  to  appear  before  \}i\Q,  judex  delicti.  In  the  first  case, — 
i.e.,  where  the  delinquent  is  still  in  such  territory, — the  eccle- 
siastical judge — v.g.,  bishop  of  the  diocese — of  this  territory 
has  full  power  to  try  and  punish  him,  so  much  so  that  he  can 
even  pass  sentence  of  dismissal  from  benefice  or  ecclesiastical 
office  where  the  nature  of  the  crime  warrants  it,  and  that 
even  though  the  benefice  is  situate  in  another  place/  We 
S2iy,  pass  sentence  of  dismissal;  for  the  execution  of  this  sen- 
tence of  privation  belongs  to  the  judge  or  bishop  of  the 
diocese  where  such  benefice  or  office  is.* 

793.  In  the  second  case, — that  is,  where  the  delinquent 
has  indeed  left  the  place,  but  was,  prior  to  leaving,  cited  by 
the  judge  of  such  place  or  territory, — it  is  certain  that  the 
latter  can  proceed  against  him  even  in  his  absence ;  so  that 
if  the  defendant  refuses  contumaciously  to  obey  the  citation 
and  appear  for  trial,  the  judge  or  bishop  can  proceed  against 
him  as  in  contempt — that  is,  he  can,  besides  punishing  him 
for  contempt,  proceed  with  the  trial  even  in  the  defendant's 
absence,  and  if  he  find  him  guilty,  inflict  punishment — v.g., 
suspension,  excommunication  —  upon  him.  Nay,  he  may 
even  decree  dismissal  from  benefice  or  office,'  though,  as 
we  have  just  seen,*  where  such  office  or  benefice  is  out  of 
his  district,  he  must  remit  the  execution  of  such  decree  to 
the  bishop  of  the  diocese  where  the  benefice  is  located. 

794.  In  the  third  case, — namely,  where  he  had  left  before 
he  was  cited, — no  personal  action  {actio  personalis)  can  be 
brought  against  him  before  the  judge  of  the  territory  or 
district  where  he  committed  the  deed.  For,  as  Pope  Boni- 
face VIII.  says;  Extra  territoriuin  jus  dicenti  non  pareatur 

'  Cap.  Postulasti  14  (ii.  2);  Reiff.,  1.  c,  n.  48;  Schmalzg.,  1.  c,  n.  61. 

'  Schmalzg.,  1.  c,  n.  60  (3). 

^  Cap.  Proposuisti  19,  De  For.  Comp.  (ii.  2).  •*  Supra,  n.  792. 


68  Of  the  Competent  Ecclesiastical  Tribunal. 

impuneJ'  We  S3.y,  no  personal  actiojt ;  that  is,  the  judge  can- 
not, as  we  have  seen  in  the  case  oi  Judex  rei  sitae^  inflict  any 
punishment  directly  affecting  his  person,  such  as  suspension. 
But  an  actio  realis  lies  against  him  before  such  judge — i.e., 
this  judge  can  issue  decrees  depriving  the  absent  defendant 
of  his  goods  or  possessions  located  in  the  said  judge's  dis- 
trict/ The  reason  is  that  the  defendant  who  has  left  the 
place  before  having  been  cited  remains  subject  indeed  to  the 
judge  of  that  place  so  far  as  his  goods  located  there  are  con- 
cerned, but  not  so  far  as  his  person  is  concerned.  Moreover, 
the  defendant  in  the  case  may,  upon  the  requisition  or 
request  of  the  judex  delicti,  be  compelled  by  the  bishop  or 
ordinary  of  his  domicile  or  place  where  he  actually  lives  at 
the  time,  and  that  even  by  censures,  to  appear  before  the 
ordinarius  delicti  for  trial.  And  if  he  appears,  the  judex 
delicti  can  proceed  both  against  his  person  and  his  goods.* 
But  if  he  does  not  appear,  he  can,  even  in  this  case,  be  pro- 
ceeded against,  though  only  so  far  as  his  goods  are  concerned. 

795.  We  observe  that  where  the  crime  was  begun  in  one 
territory  or  diocese  and  consummated  m  another,  it  is  the 
more  probable  opinion  that  the  delinquent  may  be  tried  and 
punished  by  the  judge  or  bishop  of  either  place ;  in  such 
manner,  however,  that  the  ordinary  who  has  first  taken  up 
the  case  has  the  exclusive  right  to  continue  and  finish  it. 
This  right  is  called  the  jus  praeventiojiis — i.e.,  the  right  of 
anticipation." 

796.  General  remarks  regarding  the  above  four  modes  of 
having  competence, — From  what  has  been  said,  it  follows  that 
the  only  competent  judge,  in  the  first  instance,  of  ecclesi- 
astics, even  though  only  in  minor  orders  or  tonsure,  in  all 
ecclesiastical  causes,  civil  or  criminal,  is  their  bishop  or 
ordinary.     By  the  latter  is  meant,  as  we  have  seen,  and  in 

'  Cap.  2,  de  Const.,  in  6°  (ii.  i).       '  Supra,  n.  789.       *  Schmalzg.,  1.  c,  n.  61. 
*  Ex  Clem.   Pastoralis  2  (ii.  11);  Reiff.,  1.  c,  n.  61;   Prael.   S.  Sulp.,  1.  c,  n. 
657.  '  Reiff.,  I.  c,  n.  75. 


Of  the  Competent  Ecclesiastical  Tribunal.         69 

the  manner  explained,  the  bishop  or  ordinary  of  th'e  place 
[a)  where  an  ecclesiastic  has  his  domicile  or  quasi-domicile ; 
{b)  or  where  the  contract  or  obligation  was  entered  into  ;  {c) 
or  the  crime  committed ;  (^)  or  the  object  in  controversy  is 
situate  ;  {e)  finally,  the  Roman  Curia.  Again  we  observe, 
that  of  all  these  courts  or  judges  the  bishop  or  ordinary  ol 
the  domicile  has  the  fullest  power,  and  is,  in  fact,  the  ordi- 
nary forum  of  ecclesiastics.  The  Roman  Curia,  as  we  have 
seen,  is  considered  \\i^  judex  domicilii  for  all  Catholics  of  the 
whole  world. 

797.  Besides  these  four  ways  in  which  a  person  may  fall 
under  the  competence  of  an  ecclesiastical  judge,  there  are, 
as  we  have  seen,  several  others  of  minor  importance.  The 
first  is  by  delegation,  which  we  have  already  sufficiently 
explained.* 

798.  The  second  is  by  prorogation  {prorogationc  jurisdic- 
tiotiis)  or  by  the  consent  of  the  parties.  This  prorogation  is 
defined  the  extension  of  the  jurisdiction  or  competence  of  a 
judge  beyond  its  limits, — v.g.,  to  persons  or  causes  which 
otherwise  do  not  fall  under  his  jurisdiction, — made  by  the 
consent  of  the  parties  voluntarily  submitting  themselves  to 
him.'  It  IS  certain  that  in  ecclesiastical  courts  parties  may 
in  many  cases  agree  upon  a  judge  otherwise  incompetent  in 
their  particular  case.'  It  is  true  that,  according  to  the 
Council  of  Trent,  the  ordinary,  as  judge  in  the  first  instance, 
has  the  right  to  call  before  his  tribunal  all  ecclesiastical 
causes  of  his  diocese,  whether  the  contending  parties  be 
seculars  or  ecclesiastics.  But  from  this  it  does  not  follow 
that  he  must  necessarily  do  so."  Hence,  not  only  the  laity,' 
but  also  the  clergy,'  may  even  at  present,  in  ecclesiastical 
causes,  agree  upon  an  ecclesiastical  judge,  to  whom  they  are 

'  Supra,  n.  226  sq.  ^  Ex  1.  i  et  2  ff.  de  Judic.  (v.  i);  Reiff.,  1.  c,  n.  122. 

^  lb.;  Craiss.,  n.  5660.  *  Schmalzg.,  1,  c.  n.  145. 

*  Cap.  Nullus  3,  de  par.  et  al.  par.  (iii.  29). 

*  Cap.  Significasti  18,  de  for.  comp.  (ii.  2). 


70         Of  the  Competent  Ecclesiastical  Tribu7ial. 

otherwise  not  subject,  provided  it  be  with  the  consent  of  their 
own  ordinary. 

799.  In  order  that  the  prorogation  may  be  vahd,  certain 
conditions  are  required.  They  are  chiefly:  i.  The  judge 
whose  jurisdiction  is  to  be  extended  to  the  case  must  have 
some  jurisdiction.  For  it  is  evident  that  where  there  is  no 
jurisdiction  it  cannot  be  extended.  2.  This  jurisdiction 
which  is  to  be  extended  to  a  case  must  be  of  the  same  kind 
with  that  which  is  requisite  in  the  case.  Thus,  if  the  cause 
is  criminal,  the  judge  whose  jurisdiction  is  to  be  extended 
must  have  criminal,  not  merely  civil,  jurisdiction.  Other- 
wise, there  would  be  not  merely  prorogation,  or  extension 
of  competence,  but  a  conferring  of  new  jurisdiction,  which 
private  persons  cannot  do.'  3.  The  parties  must  freely  and 
knowingly  consent  to  the  judge.'  4.  The  judge,  whose 
jurisdiction  is  to  be  extended,  must  have  not  merely  dele- 
gated, but  ordinary  jurisdiction,  or  at  least  delegated  juris- 
diction ad  universitatem  causarum,  which  is  placed  on  a  like 
footing  with  ordinary  jurisdiction.' 

800.  Hence  we  think  that  in  the  United  States  eccle- 
siastics in  one  diocese  could,  with  the  consent  of  their 
bishop,  submit  their  cause  for  trial  and  adjudication  to  the 
bishop  and  Commission  of  Investigation  of  another  diocese. 
For  it  seems  that  Commissions  of  Investigation  are  delegati 
ad  universitatem  causarum,  in  regard  to  the  hearing  of  causes. 

801.  The  third  extraordinary  way  of  falling  under  the 
competence  of,  and  being  triable  by,  an  ecclesiastical  court, 
otherwise  destitute  of  competence  in  the  case,  is  by  com- 
promise or  arbitration  {competentia  per  compromissuni).  Speak- 
ing in  general,  there  are  two  kinds  of  arbitrators — arbitra- 
tors in  the  strict  sense,  and  arbitrators  in  a  broad  sense.* 
B}'  an  arbitrator  in  the  broad  sense  of  the  term,  we  mean 


'  Schmalzg.,  1.  c,  n.  144.  •  L.  2  ff.  de  Judic. 

'  Cap.  40,  de  Off.  jud.  del.  (i.  29).  *  Schmalzg.,  1.  i.,  t.  43,  n.  I. 


Of  the  Competent  Ecclesiastical  TiHbuital.  Ji 

any  worthy  person  selected  to  settle  some  matter  or  ques- 
tion. Arbitrators  proper  {arbitri),  or  in  the  strict  sense  of 
the  term,  of  whom  we  here  speak,  are  those  worthy  and 
competent  persons  who  are  chosen  either  by  direction  of 
ecclesiastical  law,  or  by  the  agreement  of  the  parties,  to  take 
cognizance  of,  and  pronounce  sentence  upon,  the  matter  in 
dispute,  in  such  manner  that  the  parties  are  bound  to  abide 
by  their  decision.*  The  chief  differences  between  arbitrators 
proper  and  arbitrators  in  a  broad  sense  are  two:  i.  The 
former  should  observe  in  their  proceedings  the  formalities 
prescribed  for  judicial  proceedings  ;  for  they  act  as  judges. 
The  latter  settle  the  matter  ex  aequo  et  bono,  and  even  with- 
out the  observance  of  the  formalities  required  in  judicial 
proceedings.  2.  The  sentence  of  arbitrators  proper,  even 
though  unjust,'^  must,  as  a  rule,  be  accepted  as  final,  and 
obej'ed,  save  where  they  were  chosen  by  direction  of  the 
law  ;  whilst  that  of  arbitrators,  in  the  wide  sense,  may  sim- 
ply have  that  force  or  weight  which  the  opinion  of  a  worthy 
person  would  possess.' 

802.  Arbitrators  proper,  as  is  evident  from  the  definition, 
are  of  two  kinds — necessary  and  voluntary.  Necessary 
arbitrators  {arbitri  juris,  arbitri  necessarii)  are  those  who  are 
chosen,  indeed,  either  by  the  judge  or  the  parties,  though 
necessarily — i.e.,  in  cases  where  the  law  of  the  Church  not 
only  allows,  but  positively  commands  it.  Now,  in  what 
cases  does  the  law  of  the  Church  prescribe  that  arbitrators 
be  chosen  to  settle  the  dispute  or  cause  ?  Chiefly  in  the  fol- 
lowing: I.  Where  an  ecclesiastical  judge  is  challenged  or 
objected  to  as  suspected.  In  this  case  the  law  of  the 
Church  is,  that  the  judge  cannot  himself  take  cognizance  of 
this  challenge,  but  that  arbitrators  must  be  selected  to  do  so.* 
2.  Where  an  ecclesiastic  has  a  dispute  or  controversy  with 

>  Reiff.,  1.  i.,  t.  43,  n.  5;  De  Angelis,  1.  i.,  t.  43,  n.  i. 

'^  L.  Diem  27  ff.  de  recep.  qui  arb.  rec.  (iv.  8).  ^  De  Angelis,  1.  c. 

*  Cap.  39,  de  Off.  jud.  del.  (i.  29);  cap.  11,  de  Off.  jud.  del.,  in  6  (i.  14). 


72  Of  the  Competent  Ecclesiastical  Ti'ibunal. 

his  own  bishop.     The  law  of  the  Church  directs  that  such 
dispute  be  settled  by  arbitrators  chosen  by  both  parties.' 

803.  Voluntary  arbitrators  {arbitri  voluntarii,  arbitri  com- 
projuissarii)  are  those  who  are  chosen  not  of  necessity, — that 
is,  not  because  the  law  so  directs, — but  by  the  free  consent 
of  the  contending  parties.  Necessary  arbitrators  differ  from 
voluntary  chiefly  {a)  in  that  the  former  have  jurisdiction, 
and  also  a  certain  coercive  power."  Hence  they  can,  like 
judges  proper,  cite  the  parties,  compel  the  witnesses  to  ap- 
pear, etc.  The  latter  have  merely  what  is  called  notio  or  vicra 
cognitio  causae^  but  no  jurisdictional  or  coercive  power,  and, 
consequently,  can  indeed  hear  the  cause  and  pronounce  sen- 
tence, but  cannot  compel  the  parties  or  witnesses  to  appear. 
The  reason  of  the  difference  is,  that  necessary  arbitrators  are 
appointed  by  the  law  or  the  superior.  Now,  either  of  the 
latter  can  and  is  presumed  to  give  jurisdiction  to  the  arbi- 
trators. Voluntary  arbitrators,  on  the  other  hand,  are 
selected  solely  by  the  will  of  the  parties,  who  neither  have 
nor  consequently,  can  give  jurisdiction.*  {h)  From  the  sen- 
tence or  award  of  necessary  arbitrators,  as  we  have  seen,  it 
is  always  allowed  to  appeal ;  from  that  of  voluntary,  it  is  not 
permitted,  as  a  rule,  to  appeal,  ic)  Again,  a  person  can  be 
compelled  to  act  as  necessary  arbitrator,'  but  not  as  voluntary. 

804.  An  arbitrator,  in  the  proper  sense,  especially  if  he 
is  a  necessary  arbitrator,  does  not  differ  greatly  from  a  judge 
proper,*  but  is,  in  fact,  in  most  respects  considered  a  judge, 
in  the  true  sense  of  the  word.  We  say,  does  not  differ  greatly  ; 
for  there  are  some  differences.  Thus,  a  judge  can  execute 
his  sentence,  while  an  arbitrator  cannot,  but  must  leave  the 
execution  of  his  sentence  to  the  ordinary  judge  having  com- 
petence in  the  matter.^ 

'  Can.  Si  Clericus  46,  C.  11,  q.  i;  De  Angelis,  1.  c,  n.  2. 

*  Ex  cap.  39,  de  Off.  del.      '  L.  5  ff.,  de  Re  jud.  (42.  i).      *  Schmalzg.,  1.  c,  n.  3. 

'  Cap.  61,  de  Appell.  *  L.  i  flf.  de  Recep.  qui,  etc.  (iv.  8). 

'  L.  Cum  antea  5,  C.  de  Recep.  arb.  (ii.  56). 


Of  the  Competent  Ecclesiastical  Tribunal.         73 

805.  Q.  Who  can  be  appointed  arbitrators  ? 

A.  Generally  speaking,  all  persons  whatever,  unless  they 
are  expressly  excluded  by  law.  Nor  does  it  matter  whether 
they  are  private  individuals  or  public  officials.'  Now,  by  the 
law  of  the  Church,  the  following  are  chiefly  excluded  :  i.  Reg- 
ulars, except  where  there  is  question  of  the  good  of  their 
monastery,  and  even  then  they  can  act  only  with  the  consent 
of  their  superior.  The  reason  is  the  same  as  that  on  account 
of  which  they  are  forbidden  to  act  as  procurators  or  judges. 
2.  Laymen,  in  ecclesiastical  causes,  unless  they  are  specially 
authorized  by  the  Holy  See,  or  chosen  with  the  permission 
of  the  superior  conjointly  with  an  ecclesiastic'  Whether  a 
layman  can  be  chosen  as  an  arbitrator  in  the  broad  sense,  is 
controverted.  Schmalzgrueber '  holds  the  affirmative;  De 
Angelis'  the  negative.  3.  Finally,  a  person  who  is  excom- 
municated as  vitandiis^  It  is  allowed  to  choose  one  or  more 
persons  to  arbitrate  in  the  same  cause.  If  several  are  se- 
lected, it  is  more  advisable  to  make  the  number  uneven,*  so 
that  in  case  of  disagreement  there  can  be  a  majority.  It  is, 
however,  not  forbidden  to  make  the  number  even.'  The 
majority  decides,'  unless  it  was  specially  agreed  among  the 
contending  parties  that  the  verdict  of  the  arbitrators  must 
be  unanimous." 

806.  Q.  What  causes  or  matters  can  be  submitted  to 
arbitrators  freely  chosen  by  the  parties  ? 

A.  We  premise:  We  do  not  here  speak  of  causes  which 
must,  as  we  have  seen,'"  be  submitted  to  arbitration,  but  only 
of  those  which  may  be  submitted.  We  now  answer :  All 
causes  whatever  which  are  not  expressly  excepted  by  law. 
By  "  law"  we  here  mean  the  law  of  the  Church,  or  the  civil 
law  of  the  Romans  as  adopted  by  the  Church.     Now  by  this 

'  Schmalzg.,  1.  c,  n.  ii.  »  Cap.  8,  g  (i.  43).  ^  L.  c,  n.  13. 

*  L.  c,  n.  4.  5  Cap   ^^^  jg  Sent.  exc.  (v.  39). 

*  Cap.  I,  de  For.  comp.  (i.  43);  Schmalzg.,  1.  c,  n.  11.  '  Cap.  12,  I.  c. 

^  Cap.  I,  in  6°  (i.  32).  »  De  Angelis,  1.  c,  n.  8.  >»  Supra,  n.  802. 


74         Of  the  Competent  Ecclesiastical  Tribtmal. 

law  the  following-  causes  are  excepted:  i.  Criminal  causes, 
when  criminally  tried  or  prosecuted  ;  *  2.  Matrimonial 
causes,"  when  there  is  question  of  the  validity  of  the  mar- 
riage;' 3.  Causes  or  questions  relating  to  appointments  to 
ecclesiastical  offices  or  benefices,  except,  however,  when  the 
ecclesiastical  superior  consents  or  the  ordinary  himself  is 
chosen  arbitrator ;  *  4.  Causes  which  have  been  decided  by 
a  sentence  that  has  passed  into  res  judicata  ;^  5.  Causes  that 
redound  to  the  prejudice  of  the  Holy  See ;  °  6.  Major 
causes,  and  those  specially  reserved  to  the  Holy  See/ 

807.  Powers  and  Duties  of  Arbitrators. — i.  The  power  of 
those  arbitrators  who  are  chosen  freely  {arbitri  conipro- 
missarii),  and  not  necessarily,  is  neither  greater  nor  less  than 
what  is  given  them  by  the  parties  in  the  compromise  or 
agreement,  or  by  the  judge.  For,  says  the  Roman  law,  id 
venit  in  comproniissiint,  de  quo  actum  est  ut  veniret.^  Thus, 
before  a  voluntary  arbitrator,  no  counter-action  {reconvention 
can  be  instituted,'  unless  the  contrary  be  expressed  in  the 
agreement."  Nor  can  such  counter-action  be  brought  even 
before  a  necessary  arbitrator  when  the  latter  is  chosen  to 
settle,  not  the  whole  case,  but  merely  a  particular  issue  or 
question — v.g.,  whether  the  judge  is  suspected.  But  if  the 
necessary  arbitrator  be  chosen  to  decide  the  whole  cause, 
— which  happens,  v.g.,  in  controversies  or  disputes  between 
a  bishop  and  one  of  his  ecclesiastics, — a  counter-action  lies 
before  him." 

808.  2.  The  arbitrators,  even  though  voluntary,  and  even 
though  this  is  not  expressly  stated  in  the  compromise  or 
agreement,  can,  like  delegated  judges,  take  cognizance  of 
questions   or   causes  which   are,  so  to  say,  intrinsically   or 

'  Cap.  Causa  9,  de  In  int.  rest.  (i.  41).  *  lb. 

^  Schmalzg.,  1.  c,  n.  16  (2).  ■*  Ex  cap.  10  (i.  43).  *  Cap.  11,  1.  c. 

*  Cap.  5,  1.  c.  '  Ex  cap.  Causa,  cit. 

^  L.    21,   §   Plenum  ff.  de   Rec.   qui,   etc.   (iv.   8);  De  Angelis,  1.   c,  n.  6; 
Schmalzg.,  1.  c,  n.  26.  '  Cap.  6(i.  43). 

1"  Schmalzg.,  1.  c,  n.  17.  "  Can.  46,  G.  11,  qu.  i;  De  Angelis,  I.  c,  n.  6. 


Of  the  Competent  Ecclesiastical  Tribunal.  75 

necessarily  connected  with  or  incidental  to  the  principal 
cause  in  such  manner  that  they  cannot  well  decide  the 
latter  without  at  the  same  time  pronouncing  upon  the  former.' 
Thus  they  can  decide  exceptions,  both  dilatory  and  peremp- 
tory ;  what  comes  within  the  agreement  or  arbitration/  etc. 

809.  3.  Where  nothing  else  is  said  in  the  agreement,  the 
mode  of  procedure  to  be  observed  by  the  arbitrators  is 
nearly  the  same  as  that  observed  in  trials  or  judicial  pro- 
ceedings. For  arbitrations  resemble  judicial  processes. 
Thus  the  Roman  law,  adopted  by  the  Church,  says  :  "  Com- 
promissum  ad  similitudinem  judiciorum  redigatur." '  We 
say,  where  notJiing  else  is  said  in  the  agreement ;  for  the 
parties  choosing  the  arbitrator  (we  speak  of  voluntary  arbi- 
trators) can,  and  usually  do,  by  mutual  agreement  establish 
the  form  of  procedure  or  trial  to  be  followed.* 

810.  Effects  of  the  Decision  or  Award  of  tJie  Arbitrators. — 
Are  the  parties  always  obliged  to  abide  by  the  decision  or 
award  {lauduni)  of  arbitrators?  We  must  distinguish  be- 
tween arbitrators  proper  and  arbitrators  in  a  wide  sense. 
The  decision  of  the  latter,  if  unjust,  need  not  be  complied 
with  by  the  aggrieved  party,  but  may,  when  proved  to  be 
unjust,  be  corrected  or  modified  according  to  the  estimate 
of  a  good  and  competent  person."  As  to  arbitrators  proper, 
we  again  distinguish  between  voluntary  and  necessary  arbi- 
trators. Against  the  decision  or  award  of  the  latter  it  is,  as 
we  have  seen,  always  allowed  to  appeal."  But  against  the 
award  of  voluntary  arbitrators,  whether  it  be  just  or  unjust, 
it  is  not,  as  a  rule,  permitted  to  appeal'  The  reason  is,  that 
a  person  who  of  his  own  free-will  submits  his  case  to  arbi- 
trators, has  only  to  blame  himself  if  he  is  thereby  injured. 

811.  We  said,  as  a  rule ;  for  there  are  several  exceptions. 
Thus   the    decision   of   voluntary    arbitrators   need   not   be 

'  Ex  cap.  5,  21,  de  Off.  del.  *  De  Angelis,  1.  c. 

'  L.  I  ff.  (iv.  8);  cap.  6  (i.  43).  *  Schmalzg.,  1.  c,  n.  26. 

*  Supra,  n.  801.         'Supra,  n.  803,         '  lb.;  L.  27  ff.  de  Rec.  qui  rec.  (iv.  8). 


76  Of  the  Competent  Ecclesiastical  Tribunal. 

obeyed  by  the  ag-grieved  party  {a)  if  the  arbitrator  violated 
any  of  the  conditions  of  the  arbitration  agreement.'  For,  as 
we  have  seen,  voluntary  arbitrators  have  no  power  beyond 
that  agreed  upon  by  the  parties  choosing  them,  {b)  Where 
the  decision  is  contrary  to  the  sacred  canons,  {c)  If  the  arbi- 
trator was  deceived  or  bribed  by  the  opposing  party,  {d) 
When  the  injustice  of  the  decision  is  notorious,  {e)  When 
the  injury  inflicted  by  the  decision  is  of  an  extraordinarily 
grave  character.  Because  in  this  as  in  the  preceding  case, 
fraud  or  deceit  is  presumed."  We  have  said,  of  an  extraordi- 
narily grave  character ;  for  whether  it  is  lawful  to  refuse  to 
abide  by  the  decision,  if  the  injury  is  grave  indeed,  but  not 
extraordinarily  so,  is  controverted.  Schmalzgrueber,*  with 
most  canonists,  holds  that  once  the  sentence  of  the  arbitra- 
tors is  accepted  or  acquiesced  in  by  the  parties  {quando 
arbitrintn  ho7nologatum  est  a  partibus),  either  expressly  or 
tacitly, — v.g.,  by  not  appealing  within  ten  days, — it  can  no 
longer  be  modified,  on  the  plea  of  grave  injury. 

812.  Finally,  an  ecclesiastical  judge  or  court  obtains  com- 
petence by  what  is  called  contincntia  causae,  or  the  connection 
or  bearing  which  one  cause  has  with  or  upon  another.^  Thus, 
a  judge  can  take  cognizance  of,  and  decide  all  questions  or 
matters  which  in  the  course  of  the  trial  come  up  inciden- 
tally to,  or  in  connection  with,  the  main  cause  or  question  at 
issue,  in  such  manner  that  the  one  cannot  be  well  decided 
without  the  other.  This  holds  of  delegated  as  well  as  ordi- 
nary judges,'  and  it  is  needless  to  add,  also  of  Commissions  of 
Investigation  in  the  United  States,  so  far  as  the  trial,  exclu- 
sive of  final  sentence  in  such  causes,  is  concerned.  The  rule 
is  based  on  the  general  principle,  that  when  a  person  is  em- 
powered to  proceed  in  a  cause  or  causes,  he  is,  by  that  very 
fact,  implicitly  authorized  to  do  whatever  is  necessary  or 
expedient  to  the  discharge  of  his  duty. 

'  Cap.  6  (i.  43).  *  De  Angelis,  1.  c,  n.  10.  ^  l.  c,  n.  36. 

*  L.  10,  C.  de  Jud.  (iii.  i).  ^  Reiff.,  1.  2,  t.  2,  n.  145. 


CHAPTER   V. 

OF  JUDICIAL   PROOFS. 

Art.  I. 
Judicial  Proofs,  in  General. 

813.  When  the  defendant,  upon  being  duly  summoned, 
appears  in  the  ecclesiastical  court  (in  the  U.  S.,  before  the 
Commission  of  Investigation),  and  denies  the  charges  or 
allegations  made  against  him,  it  becomes  necessary  to  prove 
them  ;  otherwise  they  fall  to  the  ground,  according  to  the 
maxim :  ''Actore  non  probante,  reus  absolvitur."  We  shall 
therefore  speak  of  judicial  proofs,  and  that,  first,  in  general; 
next,  in  particular. 

814.  A  proof  {probatio)  in  general  is  the  demonstration  or 
establishment  of  a  disputed  or  controverted  matter  by  law- 
ful means  or  arguments.  Proofs  are  of  two  kinds  :  judicial, 
or  extrajudicial.  A  judicial  proof  [probatio  Jiidicialis)  is  de- 
fined a  judicial  act,  by  which  the  judge  is  convinced  of  the 
certainty  of  a  disputed  thing  or  fact,  and  that  either  through 
documents,  or  witnesses,  or  proper  arguments.'  A  judicial 
proof,  therefore,  is  that  which  is  made  iri  court,  or  before  the 
judge ;  an  extrajudicial,  is  that  which  is  made  out  of  court, 
or  not  before  a  judge  sitting  in  or  holding  court.^  A  judicial 
proof  is  either  full  or  perfect  {probatio  plena) — namely,  when 
it  fully  and  clearly  establishes  or  demonstrates,  in  court,  an 
alleged  fact  or  statement,  and  thus  enables  the  judge  to  pro- 
nounce sentence,  without  further  investigation  ;  or  it  is  in- 

*  Schmalzg.,  1.  ii.,  t.  19,  n.  i.  *  Reiff.,  I.  ii.,  t.  19,  n.  9. 


78  Of  Judicial  Proofs, 

complete  or  imperfect  [probatio  semiplena) — namely,  when  it 
establishes  as  probable,  though  not  as  certain,  the  fact  or 
affair  on  trial  before  the  judge.'  In  other  words,  a  full  proof 
is  one  that  makes  the  judge  or  court  certain  of  the  fact  or 
matter  in  dispute  ;  an  incomplete  one  is  that  which  leaves 
him  in  doubt. 

815.  How  many  kinds  of  full  proof  are  there?  Chiefly 
these  :  i.  The  testimony  or  deposition  of  two  witnesses,  who 
are  above  all  suspicion  or  objection,  on  one  and  the  same 
point.  2.  A  public  instrument,  or  other  authentic  writing, 
having  the  force  of  a  public  instrument.  3.  The  presumption 
which  is  called  juris  ct  dc  jure.  4.  The  oath  taken  by  one  of 
the  litigants,  upon  the  demand  of  the  opposing  party.  5.  Con- 
fession of  the  accused.  6.  Evidence  or  notoriety  of  the  fact." 
The  chief  effect  of  a  full  proof  is  that  sentence  has  to  be 
pronounced  in  accordance  with  it.'  In  other  words,  the 
judge  is  bound  to  pass  judgment  secundum  allegata  et probata.^ 
Hence  he  should  either  condemn  the  defendant,  if  the  plain- 
tiff has  fully  proved  the  charges  or  allegations,  or  absolve 
him  if  the  allegations  are  not  fully  sustained. 

816.  What  are  the  chief  kinds  of  incomplete  proofs?  i. 
The  deposition  {a)  of  one  witness  {b)  or  of  several  singular 
witnesses  {testes  singidares) — i.e.,  of  several  witnesses,  each 
of  whom  testifies  to  a  diffei-ent  point,  ic)  or  even  of  two  wit- 
nesses who  testify  on  the  same  point,  but  who  are  not  above 
all  suspicion.  2.  A  private  writing  or  instrument.  3.  Com- 
parison of  handwriting,  where  there  is  a  doubt  as  to  the 
writing.  4.  Probable  presumptions.  5.  Fame  or  current 
report.     6.  The  supplementary  oath.^ 

817.  Can  two  imperfect  proofs  {probationes  semiplenae) 
constitute  a  full  proof?  i.  It  is  certain  that  they  cannot 
{a)  in  criminal  causes;'  because  in  such  causes  the  proofs 

'  Schmalzg.,  1.  c,  n.  10;  Devoti,  1.  3,  t.  9,  §  3-  *  Schmalzg.,  1.  c,  n.  la 

3  Reiff.,  1.  c,  n.  190.  *  Can.  Judicet  4,  C.  3,  q.  7. 

5 Schmalzg.,  1.  c,  n.  14.  *  Supra,  n.  726. 


Of  Judicial  Proofs,  79 

must  be,  as  canonists  say,  clearer  than  the  noonday  sun  — 
Itice  meridiana  clariores."^  {b)  In  matrimonial  causes,  when 
there  is  question  of  the  validity  of  a  marriage  already  con- 
tracted, {c)  In  civil  causes  of  a  grave  character."  2.  With 
these  exceptions,  two  imperfect  proofs  can  make  a  full 
proof  if  they  are  joined  together  and  tend  to  the  same  end, 
even  though  they  be  of  a  different  kind — such  as,  one  witness 
together  with  the  oath  ;  presumptions  in  conjunction  with 
common  fame.' 

818.  From  what  has  been  said,  it  follows  that  judicial 
proofs  must,  as  a  rule,  be  full  and  conclusive  {probatio  plena). 
This  is  inferred  by  canonists  from  these  words  of  the  Justinian 
code :  "  Judices  oportet  imprimis  rei  qualitatem  plena 
inqiiisitione  disciitere" *'  Nay,  such  full  and  complete  proof 
is  required  Qwenjicre  divino,  as  appears  from  these  words  of 
our  Lord  :  "  In  ore  duorum  vel  trium  stat  omne  verbum." '" 
We  say,  as  a  rule ;  for  there  are  some  exceptions.  Thus  ici) 
the  testimony  of  but  one  witness  is  full  proof,  when  his 
deposition  is  beneficial  to  another  person  and  does  not  hurt 
anybody."  Thus  the  testimony  of  one  witness  is  sufficient 
to  establish  the  fact  that  a  person  has  been  baptized  or  that  a 
church  is  consecrated.'  {p)  Again,  an  imperfect  proof  is  suffi- 
cient in  summary  causes  which  are  of  but  little  moment  and 
not  prejudicial  to  any  one.  By  summary  causes  we  mean 
causes  that  are  tried  summarily,  or  where  a  person  is  em- 
powered to  proceed  siimmarie  ac  de  piano.  We  have  just 
said,  which  are  of  but  little  moment,  etc. ;  for  in  summary 
causes  which  are  of  graver  importance  and  may  seriously 
prejudice  others,  the  proofs  must  be  full  and  conclusive. 
Thus  Pope  Clement  V.  says :  "  Non  sic  tamen  Judex  litem 
abbreviet"  (in   processu  summario)  "quin  probationes  neces- 

'  L.  25,  C.  de  Probat.  (iv.  19);  Bouix,  de  Jud.,  vol.  i.,  p.  305. 
'  Supra,  n.  726.        ^  Schmalzg.,  1.  c,  n.  16,  17.  *  L.  9,  C.  de  Jud.  (iii.  i). 

*  Matth.  xviii.  16;   Reiff.,  1.  c,  n.  57.  «  Can.  no,  de  Consecr.  dist.  4. 

'  Glossa  in  cap.  51,  de  Test.  v.  nisi  juratus. 


8o  Of  Judicial  Proofs. 

sariae  .  .  .  admittantur."  *  We  conclude,  therefore,  with 
ReifFenstueP  that  full  proof  {probatio  plena)  is  required  also 
in  summary  and  extrajudicial  proceedings  when  there  is 
question  of  inflicting  an  irreparable  damage.  These  princi- 
ciples,  it  would  seem  to  us,  apply  also  to  proceedings  before 
Commissions  of  Investigation  in  the  United  States.  Finally, 
{c)  imperfect  proofs  are  sufficient  when  a  cause  is  committed 
to  a  judge  in  such  a  manner  that  he  may  proceed  sola  facti 
veritatc  inspecta^ 

819.  Upon  whom  rests  the  onus  probandi,  or  burden  of 
proof,  in  judicial  proceedings  before  ecclesiastical  courts? 
Generally  speaking,  upon  the  plaintiff;*  so  much  so,  that 
where  the  latter  has  not  sufficiently  proved  his  allegations, 
the  defendant  must  be  acquitted,  even  though  he  has  said 
nothing  whatever  in  his  defence."  This  holds  both  in  civil 
and  criminal  causes,  and  also  when  the  judge  proceeds 
ex  officio  by  way  of  inquiry — that  is,  without  any  accuser  or 
denouncer.  For  in  this  case  the  judge  or  bishop,  or  his 
prosecuting  official  (in  the  United  States,  the  bishop's  offi- 
cial appointed  according  to  n.  2  of  the  Instruction  of  the 
S.  C.  de  P.  F.,  of  July  20,  1878,  to  draw  up  and  present  the 
statement /rt*  causa),  is  bound  to  prove  the  charges  or  allega- 
tions.' We  have  S2i\di,  generally  speaking ;  for  sometimes  the 
burden  of  proof  rests  with  the  defendant — namely,  among 
other  cases,  {a)  when  the  presumption  of  the  law  is  in  favor 
of  the  plaintiff;  {b)  when  the  defendant  makes  an  exception^ 
— vg.,  when  he  objects  that  the  judge  is  not  competent. 
For  in  this  case  he  becomes  the  plamtiff,  so  far  as  the  excep- 
tion is  concerned." 

J  Clem.  Saepe  2,  De  V.  S.  (v.  11.)  «  L.  c,  n.  65. 

3  lb.,  n.  68.  ■»  Ex  L.  2  ff.  de  Prob.  (xxii.  3);  L.  i,  C.  de  Prob.  (iv.  19). 

*  Cap.  36,  de  Jurejur.  (ii.  24).  *  Bouix,  1.  c,  p.  306. 

'  L.  9,  19  ff.  de  Probat.  »  Devoti,  1.  3,  t.  9,  §  2. 


Of  Jitdicial  Proofs.  8i 

Art.  II. 
Of  Judicial  Proofs  in  Particular, 
I.   Of  Confession  {De  Confcssione). 

820.  Canonists,  following  the  order  of  the  Decretals, 
usually  treat  of  confession  before  they  enter  upon  the  dis- 
cussion of  the  other  proofs.  The  reason  is  that  where  a 
defendant,  in  a  proper  manner,  acknowledges  the  truth  or 
justice  of  what  is  alleged  against  him,  no  further  proof  is 
needed,  and  the  plaintiff  or  prosecuting  party  is  relieved  of 
all  necessity  of  submitting  further  proofs. 

821.  Confession  {cojtfessio),  as  here  understood,  is  the 
acknowledgment  by  a  person,  in  or  out  of  court,  of  the 
truth  and  justice  of  what  is  charged  or  asserted  by  the 
opposing  party.'  As  will  be  seen  from  this  definition,  con- 
fession is  divided  into  judicial  and  extrajudicial.  Judicial 
confession  (confessio  Judicialis)  is  that  which  is  made  in  court 
{in  Jure,  in  Judicio) — i.e.,  before  the  competent  judge  and 
during  the  trial  or  judicial  proceedings.  Extrajudicial 
{confessio  extrajudicialis)  is  that  which  takes  place  out  of 
court."  Whether  and  when  the  accused,  if  interrogated  by 
the  judge  as  to  his  guilt,  is  bound  to  answer,  we  shall  dis- 
cuss later.' 

822.  What  is  the  chief  effect  of  a  judicial  confession? 
Judicial  confession  is  justly  termed  the  queen  of  proofs, 
being  the  most  perfect  of  all  proofs.  Hence  it  ends  the 
trial,  and  relieves  the  plaintiff  or  prosecuting  party  of  the 
necessity  of  giving  further  proofs.  For  there  can  be  no 
better  proof   than   that   which   proceeds    from    one's   own 

'  Schmalzg.,  1.  ii.,  t.  18,  n.  i.  ^  Reiff.,  lib.  ii.,  t.  18,  n.  4. 

^  Cf.  Schmalzg.,  1.  c,  n.  3. 


82  Of  Judicial  Proofs. 

mouth.'  However,  in  order  that  it  may  have  this  effect,  it 
should  be  possessed  chiefly  of  these  quaUties :  i.  It  should 
be  made  by  a  person  who  is  twenty-five  years  old  ;"  2.  with 
entire  Hberty,  not  from  fear;  3.  from  certain  knowledge — 
that  is,  not  from  error  or  want  of  deliberation ; '  4,  in  court 
{injure) — that  is,  before  the  competent  judge  while  holding 
court.  We  say,  first,  before  the  judge ;  hence  a  confession 
made  before  an  arbitrator,  in  the  broad  sense,  is  not  judicial. 
But  that  which  is  made  before  arbitrators  in  the  proper 
sense,  whether  they  be  voluntary  or  necessary,  is  a  judicial 
confession.  The  reason  is  that  arbitrators  proper  take  cog- 
nizance of  matters  like  judges  proper.  We  say,  secondly, 
ivhile  holding  court ;  for  the  confession  is  not  considered  as 
made  in  court  {injure)  simply  because  it  is  made  before  the 
judge,  but  only  when  it  is  made  before  him  while  holding 
court."  5.  During"  the  trial  {in  judicio).  6.  With  clearness 
and  definiteness." 

823.  What  are  the  chief  effects  of  extrajudicial  confession  ? 
Before  answering  directly,  we  observe  that  we  speak  of 
extrajudicial  confession,  as  properly  proved.  In  other  words, 
it  must  first  be  lawfully  shown — v.g.,  by  two  witnesses  who 
were  present  when  the  confession  was  made,"  or  by  writing 
— that  the  confession  really  took  place.  Otherwise,  if  a  per- 
son denies  that  he  has  ever  made  the  confession  imputed  to 
him,  it  will  have  no  weight  whatever,  until  the  opponent 
proves  that  it  has  really  been  made.'  We  now  answer 
directly.  In  civil  causes  an  extrajudicial  confession  consti- 
tutes full  proof,  if  it  is  made  in  the  presence  of  the  adversary, 
and  is  at  the  same  time  specific — i.e.,  expresses  the  origin  or 

'  Cap.  2,  de  Capell.  mon.  (iii.  37);  cap.  10  (Hi.  2);  cap.  24  (v.  11);  Schmalzg. 
1.  c,  n.  20. 

2  L.  6  ff.,  de  Conf.  (42.  2).  ^  Can.  i,  c.  15,  q.  6. 

•*  L.  un.  C.  de  Confessis;  L.  11  ff.  de  Just,  et  jur.  (i.  i);  Reiff.,  1.  c,  n.  7. 

*  Schmalzg.,  1.  c,  n.  io-i6;  Devoti,  1.  3,  t.  9,  §  4. 

*  Cap.  23,  de  Testibus.  '  Reiff.,  1.  c,  n.  36. 


Of  Judicial  Proofs.  83 

cause  of  the  obligation ;  v.g.,  if  it  is  worded  thus :  I  owe 
Titius  $100,  by  reason  of  a  loan  he  gave  me/  In  criminal 
causes,  such  confession  constitutes,  indeed,  a  grave  presump- 
tion, but  not  full  and  sufficient  proof.''  Hence  the  accused 
in  the  case  cannot  be  convicted  or  condemned  on  such  con- 
fession." 

Art.  III. 
2.  Of  Witnesses  {De  Testibus). 

824.  When  the  truth  or  facts  in  a  case  cannot  be  elicited 
by  the  confession  of  the  defendant,  recourse  must  be  had  to 
other  proofs.  Of  these,  the  testimony  of  witnesses  is  the 
most  important,  as  well  as  the  one  most  frequently  employed. 
Speaking  in  general,  witnesses  {testes)  are  persons  made  use 
of  to  show  the  truth  of  a  thing  which  is  being  disputed. 
There  are  three  kinds  of  witnesses :  judicial,  instrumental, 
and  testamentary,  according  as  they  testify  in  judicial  pro- 
ceedmgs,  or  attest  an  instrument,  or  a  will.*  Judicial  wit- 
nesses, of  whom  alone  we  here  speak,  are  persons  worthy 
of  belief,  lawfully  called  or  summoned  to  testify  in  court, 
or  before  the  judge  holding  court,  on  the  facts  or  questions 
in  dispute." 

825,  Q.  Who  can  be  witnesses  in  ecclesiastical  courts — 
i.e.,  so  far  as  concerns  the  United  States,  chiefly  before  Com- 
missions of  Investigation  ? 

A.  The  rule  is  that  all  persons  can  act  as  witnesses  who 
are  not  expressly  excluded  by  law.'  By  "  law"  we  here 
mean  the  natural  as  well  as  positive — i.e.,  the  canon  law,  and 
civil  or  Roman  law,  as  adopted  by  the  Church.     Who,  then, 

'  Cap.  14,  de  Fide  instr.  (ii.  22);  Reiff.,  1.  c,  n.  37. 

^  Ex  cap.  25,  de  Rescript,  (i.  3).  3  Schmalzg.,  1.  c,  n.  28. 

■*  Schmalzg.,  1.  2,  t.  20,  n.  i. 

*  Soglia,  1.  4,  §  39,  vol.  ii.,  p.  293  (ed.  Vecchiotti). 

*  Cap.  I,  de  Test.  (ii.  20);  Glossa,  ib.  v.  idonei. 


84  Of  yudicial  Proofs. 

are  excluded  by  the  law  of  nature  ?  All  those  who  are  de- 
prived of  the  use  of  reason,  such  as  madmen,  lunatics,  imbe- 
ciles, infants,  etc'  Who  are  disqualified  by  positive  law 
— i.e.,  the  law  of  the  Church  ?  Some  are  disqualified  abso- 
lutely, others  only  in  part — namely,  so  far  as  concerns  cer- 
tain persons  or  causes.     We  proceed  to  treat  both  classes. 

826.  What  persons  are  absolutely  {i.e.,  in  all  causes,  civil 
and  criminal)  disqualified  by  the  law  of  the  Church  ?  Chiefly 
three  classes:  1.  Those  who  labor  under  a  defect  of  age — 
namely,  persons  under  the  age  of  fourteen  {inipuberes)^  2. 
Those  who  have  certain  bodily  defects.  Thus,  as  a  rule, 
those  who  are  blind,  deaf,  or  dumb,  are  disqualified."  3. 
Those  who  are  defective,  so  far  as  their  character  or  morals 
are  concerned — namely,  {a)  those  who  have  been  bribed, 
(/;)  or  hired  to  give  testimon)^''  {c)  Those  who  arc  infamous 
{infaines),  whether  by  law  or  by  fact.^  The  exceptions  are 
given  by  Schmalzgrueber."  {d)  Those  who  are  under  judi- 
cial investigation  for  crime.  For  they  cannot,  so  long  as 
their  cause  is  pending  and  their  innocence  not  shown,"  act 
as  witnesses  in  criminal  causes.  {/)  Those  against  whom  a 
grave  offence  is  objected  and  proven  by  the  opposing  party, 
even  though  they  had  not  before  been  prosecuted  for  or 
judicially  convicted  of  such  offence.*  (/)  Perjurers."  {g) 
Persons  under  major  excommunication.'"  A  distinction,  how- 
ever, is  to  be  made  between  excommunicates  who  are  to  be 
shunned  {vita?tdi),  and  those  who  are  not  to  be  avoided 
{tolerati).  The  latter  can  be  admitted  as  witnesses  by  the 
judge,  provided  the  opposing  party  does  not  object.  But 
the  former  must  be  rejected,  even  though  no  objection  is 
made  against  them  by  the  opponent. "     (//)  Finally,  persons 

'  Schmalzg.,  1.  c,  n.  3.  "^  Can.  Testes  i,  c.  4,  q.  3;  L.  19  ff.  de  Testibus. 

■^  Schmalzg.,  1.  c,  n.  7.  ■*  L-  3  ff-  de  Test. 

*  Cap.  47,  de  Test.  *  L.  c.,  n.  17.  '  Cap.  56,  de  Test. 

*  Cap.  54.  de  Test.;  Miinchen,  1.  c,  vol.  i.,  p.  132.         '  Cap.  54,  cit. 

'"  Cap.  38,  de  Test.;  cap.  8,  de  Sent,  exc,  in  6°.  "  Schmalzg.,  1.  c,  n.  26. 


Of  Judicial  Proofs.  85 

who  are  very  poor,  and  of  low  station  in  life,  by  reason  of 
their  being  presumed  to  be  liable  to  being  easily  bribed,' 
Where,  however,  they  bear  a  good  reputation,  this  suspicion 
or  presumption  does  not  hold. 

827.  What  persons  are  disqualified  by  ecclesiastical  law, 
as  witnesses,  only  in  part — i.e.,  only  in  regard  to  certain 
causes  or  persons  ?  We  observe  that  of  those  persons  who 
are  disqualified  only  in  part,  some  are  forbidden  to  testify  in 
favor  of,  others  against  certain  persons  ;  others  in  certain 
causes.  Who,  then,  are  forbidden  to  testify  in  favor  of  cer- 
tain persons  ?  i.  Parents  in  favor  of  their  children,  and  vice 
versa  ;  "  because  their  mutual  love  renders  their  testimony 
suspected.  There  are,  however,  exceptions  to  this  rule, 
which  may  be  seen  in  Schmalzgrueber.''  2.  Brothers  and 
all  other  relatives,  whether  by  consanguinity  or  affinity,  to 
the  fourth  degree  exclusive ;  *  members  of  the  same  house- 
hold, such  as  domestics,  cannot,  as  a  rule,  testify  in  favor  of 
each  other;  because,  as  the  can.  12,  c.  3,  q.  5,  says  :  "  Pro- 
pinquitatis  vel  famiharitatis  ac  dominationis  affectio  verita- 
tem  impedire  solet."  "  Where,  however,  these  persons  are 
of  a  specially  good  character,  so  that  it  may  be  safely  as- 
sumed that  they  will  tell  the  truth,  without  regard  to  their 
feelings,  or  where  they  are  the  best,  or  even  only  persons, 
who  can  testify  on  a  certain  matter, — v.g.,  as  to  the  age,  re- 
lationship, or  legitimate  birth, — their  testimony  is  admissible. 
Other  exceptions  may  be  seen  in  Schmalzgrueber.'  3.  Ad- 
vocates and  procurators,  in  matters  concerning  their  clients 
or  principals. 

828.  Who  a/e  chiefly  prohibited  from  giving  testimony 
against  certain  persons?  i.  Accomplices  or  associates  in 
crime  cannot  testify  against  each  other,^  except  ia)  where  the 
crime   necessarily   supposes   accomplices — v.g.,  fornication ; 

'  Can.  Si  testes  3,  c.  4,  q-  3;  L-  3  ff-  de  Testibus,  ^  L.  9  ff.  de  Test. 

^  L.  c,  n.  30.  *  Schmalzg.,  1.  c,  n.  31.  ^  Ci.  cap.  24,  de  Test. 

^  L.  c,  n.  30,  32,  36.  '  Cap.  lo,  de  Test. 


86  Of  Judicial  Proofs. 

{b)  in  what  are  called  crimhia  exccpta,  such  as  simony.  How- 
ever, even  where  the  testimony  of  an  accomplice  is  received, 
it  is  to  be  regarded  as  that  of  a  low,  infamous,  and  suspected 
person.'  2.  Nor  can  an  enemy  testify  against  his  enemy ;  * 
nor  Jews,  pagans,  and  heretics  against  Catholics ;  ^  chiefly 
because  of  their  supposed  hatred  against  the  latter."  4.  Nor 
laics  against  ecclesiastics,  in  criminal  causes,  and  that  partly 
because  of  the  supposed  antipathy,  or  even  hostility,  of  the 
former  to  the  latter,  but  especially  because  of  the  respect 
due  the  ecclesiastical  state."  This  is  the  rule,  which,  however, 
has  its  exceptions.  Thus  a  lay  person  can  testify  against 
an  ecclesiastic  where  there  is  question  {a)  of  the  crimes 
called  crimina  excepta, — namely,  heresy,  simony,  and  high  trea- 
son ;  ib)  and  of  other  scandalous  and  notorious  crimes — v.g., 
theft ;  ic)  where  there  are  no  ecclesiastics  who  have  a  knowl- 
edge of  the  facts — v.g.,  where  an  ecclesiastic  has  committed 
a  crime  in  a  solitary  place  ;  id')  where  the  judicial  proceed- 
ings against  an  ecclesiastic  are  conducted  per  niodum  inquisi- 
tionis^  which  is  the  mode  now  chiefly  in  vogue  in  the  entire 
Church,  and  also  prescribed  for  the  United  States  by  the 
Instruction  of  the  S.  C.  de  P.  F.  dated  July  20,  1878.  5. 
Finally,  persons  who  are  united  by  some  special  tie,  whether 
of  relationship,  or  duty,  or  business,  cannot  testify  against 
each  other.'  Thus,  parents  cannot  testify  against  their  chil- 
dren ;  nor  near  relatives  against  each  other ;  nor  advocates 
against  their  clients ;  nor  intimate  friends  against  their 
friends.*  The  reason  is,  chiefly,  that  the  Church  wishes  those 
bounds  which  so  greatly  influence  human  intercourse,  and  pro- 
mote the  welfare  of  society,  to  be  respected  and  kept  sacred." 

'  Schmalzg.,  1.  c,  n.  41. 

^  Cap.  13  et  19,  de  Accus.  (v.  i);  L.  17,  C.  de  Test.  (iv.  20). 

'  Can.  24  et  26,  c.  2,  q.  7.  *  MUnchen,  Can.  Trials,  vol.  i.,  p.  131. 

*  Cap.  3,  in  6°  (iii.  23);  cap.  33  (ii.  20). 

*  Schmalzg.,  1.  c,  n.  50.  ''  Can.  3,  c.  4,  q.  3;  L*  6,  C.  de  Test. 

*  MUnchen,  I.  c,  p.  141.  '  lb.;  Schmalzg.,  1.  c,  n.  51. 


Of  yudicial  Proofs.  87 

829.  Who  are  prohibited  from  being  witnesses  in  certain 
causes,  and  what  are  these  causes?  i.  Minors  under  the  age 
of  twenty  cannot  testify  in  criminal  causes/  while,  as  we  said 
above,  those  under  the  age  of  fourteen  cannot  testify  in  any 
cause.  2.  Ecclesiastics  and  religious  cannot  be  witnesses 
against  laics  or  even  other  ecclesiastics  in  secular  courts,  in 
causa  sanguinis?  We  say,  first,  in  secular  courts ;  for  they 
can  testify  against  seculars,  and  also,  a  fortiori,  against  other 
ecclesiastics,  in  ecclesiastical  courts,  and  that  even  in  crim- 
inal causes.  We  say,  secondly,  in  causa  sanguinis^ — that  is, 
in  causes  or  trials  where  there  is  question  of  inflicting  the 
penalty  of  death  or  of  bodily  mutilation."  For  in  civil 
causes,  or  even  in  criminal,  which  are  either  civilly  tried  or 
not  punishable  by  death  or  bodily  mutilation,  ecclesiastics 
may  be  witnesses  before  the  secular  courts,  provided  it  be 
with  the  leave  of  their  bishop.^  They  may,  moreover,  be 
witnesses  in  these  courts,  even  in  causa  satiguijiis,  for  the 
defence — that  is,  for  the  purpose  of  showing  the  innocence 
of  the  accused.  Finally,  they  can  testify  in  such  courts 
even  without  the  bishop's  consent,  in  matters  relating  to 
testaments,  instruments,  and  contracts  of  laics.' 

830.  3.  Women  cannot,  as  a  rule,  be  witnesses  in  ecclesias- 
tical courts  in  criminal  causes.'  The  reason  is,  that  a  woman 
is,  by  her  very  nature,  inconstant  and  changeable.  Hence,  as 
Pope  Gregory  I.  says,  "  Varium  et  mutabile  testimonium 
semper  foemina  producit."^  We  say,  ^^  a  rule;  for  some- 
times women,  as  well  as  other  objectionable  witnesses,  can 
testify  in  criminal  causes — namely,  {a)  in  regard  to  what  are 
called  crimina  excepta ;^  {b)  where  the  testimony  of  men  can- 
not be  had ;  {c)  where  the  judge  proceeds  ex  officio  by  way  of 

1  L.  20  ff.  de  Test.  *  Ex  can.  g,  c.  ii,  q.  i;  Glossa.,  ib.  v   recipiat. 

3  Miinchen,  1.  c,  p.  133.         •*  Reiff.,  1.  c,  n.  170.  *  Can.  2,  c.  14,  q.  2. 

*  Schmalzg.,  1.  c,  n.  55.  '  Can.  17,  c.  33,  q.  5. 

*  Cap.  Forus  10,  de  V.  S.  (v.  40):  Glossa,  ib.  v.  non  foemina,  et  v.  varium. 

*  Supra,  n.  828. 


88  Of  Judicial  Proofs. 

inquiry,  or  per  modum  inquisitionis ;  {d)  for  the  purpose  of 
showing  the  innocence  of  the  accused  ;  {c)  where  the  crime  is 
being  tried  civilly.'  Observe,  even  when  women  are  admitted, 
their  testimony  is  always  to  be  regarded  as  that  of  witnesses 
not  above  all  suspicion."  We  say,  secondly,  in  criminal 
causes ;  for  in  civil  causes  their  testimony  is  admitted.' 

831.  Nobody  can  be  witness  in  his  own  cause* — namely, 
in  a  cause  in  which  he  is  interested  in  such  manner  that  if 
he  testifies  he  will  be  benefited,  and  if  he  does  not,  he  will 
suffer,  whether  in  his  honor,  feelings,  property,  etc.*  Hence 
the  following  persons  are  chiefly  excluded:  i.  Those  who 
have  a  cause  similar  to  that  in  which  they  are  to  testify ;  * 
2.  A  judge  in  a  cause  which  he  adjudicates  or  has  adjudi- 
cated ; '  3.  Procurators  or  advocates  in  causes  which  they 
represent  or  defend.*  Whether  and  when  bishops  and  other 
ecclesiastics  can  be  witnesses  in  causes  relating  to  the 
churches  of  which  they  have  charge,  see  Reiffenstuel.' 

832.  We  observe  here  that  the  witnesses  whom  we  have 
enumerated  as  disqualified  in  part — i.e.,  in  regard  to  certain 
persons  or  causes — may  indeed  be  allowed  to  testify  even 
out  of  the  cases  already  incidentally  mentioned — v.g.,  if  the 
opposing  party  does  not  object,  or  if  the  facts  can  thereby 
be  more  fully  elicited.  But  their  testimony  is  always  to  be 
regarded  as  that  of  testes  minus  idonei,  or  witnesses  not 
above  all  suspicion  ;  and  consequently  the  testimony  of  two 
such  witnesses  does  not  constitute  full  proof,  but  only  a 
presumption." 

833.  How  many  witnesses  are  required  in  order  to  prove 
a  thing  ?  Two  witnesses  are,  as  a  rule,  requisite  and  suffi- 
cient, provided  they  are  above  all  suspicion  or  objection, 

1  Schmalzg.,  1.  c,  n.  56.  »  lb.,  n.  52.  »  Cap.  3  et  22  et  33,  de  Test. 

*  L.  10  ff.  de  Testibus;  L.  10.  C.  eod.  *  Schmalzg.,  1.  c,  n.  62. 

*  Cap.  20,  de  Test.        '  Can.  i  et  2,  c.  4,  q.  4 ;  cap.  Foius,  cit. ;  cap.  40,  de  Test. 
8  Cap.  4,  de  Test.  9  l  c,  n.  197. 

'"  Schmalzg.,  1.  c,  n.  52;  MUnchen,  1.  c,  p.  136. 


Of  Judicial  Proofs.  89 

and  are  contestes — i.e.,  agree  in  their  testimony.'  We  say, 
first,  "are,  as  a  rule,,  sufficient /'  for  there  are  cases  where 
the  Church  prescribes  a  greater  number.  Thus,  in  matrimo- 
nial causes,  where  there  is  question  of  dissolving  a  marriage 
because  of  the  impediment  of  impotency,  the  latter  must  be 
proved  by  the  oath  of  both  the  husband  and  wife,  and  of 
seven  relations  or  neighbors.''  We  say,  secondly,  '■  are,  as  a 
rule,  required /'  for,  generally  speaking,  one  witness,  even 
though  he  be  above  all  suspicion,  and  clothed  with  the 
highest  dignities,  does  not  constitute  full  proof.*  The  reason 
is  that  a  single  individual  may  easily  be  deceived  or  led  into 
error  or  corrupted.  This  rule  holds  good  not  only  by  virtue 
of  ecclesiastical,  but  even  of  divine  law,  according  to  the 
words  of  our  Lord  :  "  That  in  the  mouth  of  two  or  three  wit- 
nesses every  word  may  stand."  ^  Hence  no  statute,  custom, 
or  law,  even  of  the  Pope,  can  establish  the  contrary.*  So  far 
as  criminal  causes  are  concerned,  this  rule  has  no  exceptions 
whatever,  even  at  the  present  day.  Hence  in  such  causes 
the  testimony  of  at  least  two  competent  witnesses  is  always 
required  for  conviction.*  As  to  the  sense  in  which  one  wit- 
ness is  sufficient  in  causes  of  solicitation,  see  below  {a). 

834.  In  civil  causes  (we  speak,  of  course,  of  civil  causes 
pertaining  to  the  ecclesiastical  forum),  however,  two  wit- 
nesses are  not  always  necessary.  Thus  one  witness  is  suffi- 
cient, I,  in  favorable  matters  or  causes  which  do  not 
redound  to  any  one's  prejudice  or  injury — v.g.,  where  it  is 
doubted  whether  a  church  is  consecrated,  or  a  dying  person 
has  asked  for  the  confessor,  or  whether  a  person  is  baptized, 
or  has  the  legitimate  age  for  the  reception  of  holy  orders. 
2.  In  matrimonial  causes,  when  there  is  question  of  hinder- 

'  Can.  Si  testes  3,  c.  4,  q.  3;  cap.  4  et  23,  de  Test. ;  L.  12  ff.  De  Test. ;  L.  9, 
Cod.  de  Test.  *  Cap.  5  et  7,  de  Frig,  et  malef.  (iv.  15). 

2  L.  12  ff.  cit. ;  L.  9,  Cod.  cit. ;  cap.  lo,  23,  28,  de  Test. 
■*  Matt,  xviii.  16,  cf.  Deut.  xvii.  6;  ib.  xix.  6;  Reiff.,  1.  c,  n.  249. 
^  Schmalzg.,  1.  c,  n.  69.  «  Bouix,  de  Jud.,  t.  i.,  p.  311. 


90  Of  Judicial  Proofs. 

ing  a  marriage  from  being  contracted  on  account  of  an 
annulling  impediment.'  3.  Where  an  official  or  public  min- 
ister testifies  to  an  act  performed  by  himself — v.g.,  a  notary 
concerning  an  instrument  made  by  him  ;  a  bishop  in  regard 
to  his  official  acts  ;  a  rector  or  parish  priest  respecting  bap- 
tisms or  other  official  acts  performed  by  him."  4.  The  testi- 
mony of  one  expert  is  sufficient,  if  more  than  one  cannot  be 
easily  consulted/ 

835.  We  said,  \}!\\r^y ,  provided  they  are  above  all  suspicion 
or  objection;"  hence  the  witnesses  m.ust  be  such  that  no  objec- 
tion whatever  can  be  made  against  them,  whether  in  regard 
to  their  person  or  their  deposition.  The  objections  that 
may  be  urged  against  their  persons  have  been  already 
explained  by  us  above.^  Those  which  may  be  advanced 
against  their  depositions  or  testimony  are  chiefly:  i.  That 
they  did  not  give  a  sufficient  cause  for  the  facts  testified  to 
by  them ;  2,  That  they  did  not  agree  in  their  testimony  ; 
3.  That  they  testified,  not  from  their  own  personal  knowl- 
edge, but  merely  from  hearsay :  all  of  which  we  shall 
explain  further  on.^  We  said,  fourthly,  a7id  are  contest es — 
i.e.,  agree,  etc.;  this  phrase  we  shall  explain  below. 

836.  Q.  How  are  the  depositions  of  witnesses  to  be  re- 
ceived, or  how  are  witnesses  to  be  examined  ? 

A.  I.  The  plaintiff  or  prosecution  (the  bishop's  official 
with  us,  when  there  is  question  of  disciplinary  and  criminal 
causes  of  ecclesiastics '),  or  the  defendant  who  wishes  to 
produce  the  witnesses,  gives  the  latter's  names  to  the  judge 
(in  the  United  States,  in  criminal  and  disciplinary  causes 
of  ecclesiastics,  to  the  Commission  of  Investigation).  The 
latter  then  summons  them  to  appear  and  give  their  testi- 

•  Cap.  22,  de  Test. 

'  Ex  cap.  19,  de  Appell.  (ii.  28);  ib.,  Glossa,  v.  suus  nuntius. 
3  Schmalzg.,  1.  c,  n.  70.  *  Supra,  n.  833. 

*  Supra,  n.  825  sq.  *  Cf.  Schmalzg.,  1.  c,  n.  71;  infra,  n. 
'  Instr.  S.  C.  de  Prop.  Fid.,  20  Julii,  1878,  §  2,  et  §  10  Quod  si. 


Of  yudicial  Proofs.  91 

mony,  allowing  them  a  reasonable  time  to  refresh  their 
memory  and  prepare  for  their  testimony.  Here  it  may  be 
asked  whether  a  witness  is  worthy  of  belief  {^fide  dignus) 
when  he  comes  into  court  (in  the  United  States  the  Com- 
mission of  Investigation,  in  the  causes  given)  and  testifies, 
without  having  been  cited  by  the  judge  to  do  so?  We  dis- 
tinguish. Such  a  witness  has  either  been  asked  to  give 
testimony  by  the  plaintiff  or  defendant,  or  he  has  presented 
himself  without  being  thus  asked,  simply  out  of  alleged  love 
of  justice  or  truth.  In  the  first  case,  he  cannot  be  rejected. 
In  the  second,  his  testimony  is,  as  a  rule,  suspected,  and  by 
no  means  above  all  suspicion.  The  reason  is  chiefly,  that 
such  a  one  shows  a  singular  leaning  and  affection  toward 
the  person  in  whose  favor  he  wishes  to  testify,  and  is  conse- 
quently objectionable.'  We  said  above,  then  the  judge  sum- 
mons them.  This  must  not  be  understood  in  the  sense  that 
the  judge  should  always  issue  a  formal  summons,  or,  as  it  is 
called  in  our  secular  courts,  a  subpoena.  The  phrase  means 
that  the  judge  either  allows  the  party  to  produce  the  wit- 
nesses, or  issues  a  formal  citation  either  where  the  witnesses 
are  unwilling  to  come  at  the  sole  request  of  the  parties,  or 
where  it  is  customary  for  the  judge  always  to  cite  the 
witnesses.'' 

837.  2.  The  rule  is  that  before  the  witnesses  are  allowed 
to  give  their  testimony  the  party  against  whom  they  are 
produced  must  be  cited  to  be  present,  so  as  to  be  able  to 
object  against  the  admission  of  the  witnesses  if  he  wishes. 
Otherwise  the  testimony  will  be  of  no  force  whatever. 
Thus  Pope  Gregory  IX,  says :  "  Ecce  admonendus  est 
semper  adversarius,  ut  ad  audiendos  testes  veniat."'  The 
reason  is  that,  generally  speaking,  a  person  must  always  be 
called  to  be  present  in  court,  when  anything  which  concerns 

'  Schmalzg.,  1.  c,  n.  77;  Reiff.,  1.  c,  n.  415. 

*  L.  3,  §  fin.  ff.  de  Test.  ;  Reiff.,  I.  c,  n.  414. 

*  Cap.  In  nomine  Dni  2,  de  Test. ;  L.  19,  Cod.  de  Testibus. 


92  Of  Judicial  Proofs. 

his  interests  is  there  transacted.'  Again,  if  he  were  not 
allowed  to  be  present  he  would  be  deprived  of  the  right  to 
object  against  the  admission  of  the  witnesses.  Now  no  one 
should  be  despoiled  of  any  lawful  means  of  defence.'' 

838.  But  it  will  be  asked :  In  what  sense  has  the  party 
against  whom  the  witnesses  are  produced  the  right  to  be 
present  at  their  admission  ?  The  decretal  /;/  Nomine  Domini, 
just  cited,  seems  clearly  to  state  that  the  party  has  the  right 
to  be  present  during  the  entire  examination  of  the  witnesses. 
Nevertheless  canonists,  following  the  Glossa,^  commonly 
hold  that  he  can  be  present  only  when  they  take  the  oath 
prior  to  giving  their  testimony,  and  not  at  the  examination 
itself.  For  they  say  with  the  Glossa,  according  to  the  cap. 
52,  De  Test,  and  the  1.  14,  C.  de  Test.,  the  witnesses  are  to 
be  examined  in  secret  or  apart  from  the  parties.' 

839.  We  say,  canonists  conimonly,  etc. ;  for  there  are  very 
able  canonists  —  v.g.,  Devoti,^  Craisson,*  Todeschi' — who 
maintain  that  the  opposite  party  has  a  right  to  be  present 
also  at  the  examination  itself,  and  not  merely  at  the  taking 
of  the  oath.  In  fact,  the  decretal  In  Nomine  Dni  repeatedly 
says  that  the  party  must  be  cited  to  come  and  hear  the  wit- 
nesses— "  venire  et  audirc  testes."  And,  on  the  other  hand, 
the  decretals  which  require  the  witnesses  to  be  examined 
singillatim  or  separately  or  in  secret  may  very  well  be  ex- 
plained to  mean  that  they  should  be  examined  apart  from 
each  other,  or  not  in  each  other's  hearing,  lest  they  might 
enter  into  collusion.  Hence  it  does  not  follow  that  they 
must  be  examined  in  the  absence  of  the  opposing  party. 
This  confronting  of  the  witnesses  with  the  party  against 
whom  they  testify  is  at  present  the  rule  in  all  secular  courts 
in  the  United  States  and  elsewhere,  and  is  introduced  into 
some  ecclesiastical  courts  in  Europe, — v.g.,  in  France, — and 

'  L.  47  ff.  de  Re  jud.  '  Reiff.,  1.  c,  n.  419. 

2  In  cap.  2,  de  Test.,  v.  audire.  *  Reiff.,  1.  c,  n.  421;  Schmalzg.,  1.  c,  n.  83. 

5  L.  3,  t.  Q.  §  iS.  «  N.  5714.  ■"  Man.  ii.  20,  §  3. 


Of  Judicial  Proofs.  93 

is  also  permitted  in  the  ecclesiastical  courts  of  the  United 
States, — v.g.,  Commissions  of  Investigation, — provided  the 
Commission  judges  it  prudent  and  the  witnesses  are  willing.' 

840.  3.  The  witnesses  must  give  their  testimony  under 
oath.  In  other  words,  they  must,  prior  to  deposing,  swear 
that  they  will  tell  the  truth,  the  whole  truth,  and  nothing  but 
the  truth,  and  that  they  are  not  moved  by  hatred,  friendship, 
favor,  or  their  own  interest,  but  solely  by  love  of  truth  ;  ^ 
and  that  they  will  not  reveal  their  deposition  to  either  party 
before  its  publication.  This  last  promise  is,  of  course,  made 
only  where  the  parties  are  excluded  from  the  examination.^ 
This  oath  is  so  necessary,  that  witnesses  who  do  not  depose 
under  oath,  even  though  they  be  ecclesiastics,  or  regulars, 
or  high  dignitaries,  are  not  to  be  believed  to  the  prejudice 
of  a  third  party.  Thus  Pope  Honorius  III.  says:  "  Nullius 
testimonio,  quantuncunque  religiosus  existat,  nisi  juratus 
deposuerit,  in  alterius  praejudicium  debet  credi."*  In  fact, 
what  could  be  better  calculated  to  make  witnesses  tell  the 
truth  than  the  fear  and  reverence  inspired  by  the  sanctity  of 
the  oath. 

841.  This  law  requiring  witnesses  to  take  the  oath  holds 
so  strictly,  that  it  is  obligatory  {a)  even  in  summary  causes ; 
(I))  on  all  witnesses  whatsoever,  no  matter  of  what  station, 
dignity,  or  excellence  of  character ;  {c)  in  such  manner  that 
no  law  or  custom  can  generally  allow  of  witnesses  deposing 
without  the  oath.  For  such  law  or  custom  would  be  unrea- 
sonable, nay,  opposed  to  the  very  law  of  nature,  since  it 
would  open  the  door  to  many  calumnies,  falsehoods,  and 
great  corruption  of  the  witnesses.^  We  said  generally ;  for 
there  are  some  exceptions.  Thus,  by  custom  or  statute,  cer- 
tain persons,  of  great  probity  of  character  or  in  high  dignity, 

■  Instr.  S.  C.  de  P.  F.,  20  Julii,  1878,  §  12,  Consentientibus. 

'  Cap,  5.  17,  de  Test.;  Glossa,  in  c.  17,  de  Test.,  v.  juramentis. 

2  Schmalzg.,  1.  c,  n.  87.         *  Cap.  51,  de  Test. ;  L.  9  et  18,  C.  de  Test.  (iv.  21). 

^  Reiff.,  1.  c,  n.  478;  Schmalzg.,  1.  c,  n.  89. 


94  Of  Judicial  Proofs. 

may  be — in  fact,  are  in  many  places — allowed  to  depose  with- 
out the  oath.  The  reason  is,  that  in  their  case  there  can  be 
no  danger  of  fraud,  subornation,  or  perjury.  Again,  the 
oath  may  be  omitted  if  both  the  parties — i.e.,  the  plaintiff 
and  defendant — consent.' 

842.  The  oath  is  to  be  administered  in  the  presence  of 
the  judge  or  his  deputy,  who  previously,  with  becoming 
dignity  and  uncovered  head,  admonishes  the  witnesses  of 
the  gravity  of  an  oath,  and  the  penalty  of  taking  a  false 
oath.^  As  we  have  already  seen,  the  opposing  party  (the 
same  holds  of  the  other  party)  has  a  right  to  be  present 
while  the  oath  is  being  administered  to  the  witnesses,  and  to 
present  its  objections  against  the  admissibility  of  the  \vitness. 

843.  In  the  ecclesiastical  courts  of  the  United  States,  as 
established  by  the  Instruction  of  the  S.  C.  de  P.  F.,  of  July 
20,  1878,  on  the  mode  of  procedure  in  criminal  and  disci- 
plinary causes  of  ecclesiastics,  the  witnesses  are  not  obliged 
to  take  the  oath,  or  depose  under  oath,  as  is  evident  from 
these  words  of  said  Instruction  :  "  Non  requiratur"  (a  testi- 
bus)  "  juramentum." '  The  Holy  See  dispenses  with  the 
oath  in  this  country,  probably  because  it  has  been  found  that, 
€ven  in  Catholic  countries,  the  witnesses  are  frequently  un- 
willing to  testify  under  oath,  in  ecclesiastical  courts,  espe- 
cially in  criminal  causes.*  Nevertheless,  the  Propaganda, 
to  show  the  great  importance  it  attaches  to  the  oath,  ordains 
in  the  above  Instruction,  immediately  after  the  words  "  non 
requiratur  juramentum,"  that  "  si  testes  ipsi  non  renuant, 
et  se  paratos  esse  declarent  ad  ea  quae  detulerint,  juramento, 
data  occasione,  confirmanda,  fiat  adnotatio  hujusmodi  dis- 
Positionis  in  actis." "  In  other  words,  the  Sacred  Congrega- 
tion, finding  it  impossible  or  imprudent  to  enforce  the  letter 
of  the  law  in  this  matter,  wishes  its  spirit  to  be  carried  out. 

'  Cap.  39,  de  Test.;  ib.,  Glossa,  v.  remittantur. 

*  Schmalzg.,  1.  c,  n.  86.  ^  instr.  cit.,  §  11,  Singuli. 

*  Cf.  Soglia,  .vol.  ii.,  p.  295,  ed.  Vecch.  ''  Instr.  cit.,  §  11. 


Of  Judicial  Proofs.  95 

Hence  the  Commission  of  Investigation,  before  examining  a 
witness,  should  admonish  him  that  it  is  his  duty  to  testify 
with  the  same  disposition  and  regard  for  truth  as  though  he 
deposed  under  oath. 

844.  4.  After  the  witnesses  have  taken  the  oath,  they  are 
examined,  or  give  their  testimony.  Here  three  questions 
present  themselves  :  First,  How  are  they  to  be  examined  ? 
second,  On  what  matters?  third.  How  should  they  depose? 
Let  us  briefly  treat  of  each.  First,  How  are  witnesses  to  be 
examined  ?  They  should,  as  a  rule,  be  examined  {a)  by  the 
judge  himself.'  In  the  ecclesiastical  courts  of  the  United 
States,  as  constituted  by  the  Instruction  of  the  Propaganda, 
dated  July  20,  1878,  the  witnesses  are  examined  by  the  presi- 
dent of  the  Commission  of  Investigation,  or  by  the  other  com- 
missioners through  the  president."  {p)  In  the  place  where 
the  court  holds  its  sittings  {in  jure,  in  loco  j'udicii),  though 
where  the  witnesses  are  ladies,  or  nuns,  or  persons  of  dis- 
tinction, or  unable  to  come  into  court  by  reason  of  sickness 
or  other  hindrance,  the  judge  or  his  deputy  (in  the  ecclesias- 
tical courts  of  the  United  States,  as  established  by  the  Pro- 
paganda in  1878,  at  least  two  members  of  the  Commission') 
shall  take  the  testimony  at  the  house  of  the  witnesses,  .with 
all  the  formalities  which  would  have  to  be  observed  if  the 
deposition  were  taken  in  court — i.e.,  the  contending  parties 
would  have  to  be  summoned  to  be  present,  etc." 

845.  {c)  The  testimony  should  be  taken  down  by  the 
notary  very  carefully,  and,  as  far  as  possible,  word  for  word.* 
In  difficult  causes,  in  order  to  prevent  any  error  in  the 
record,  many  eminent  canonists  say  it  is  advisable  to  allow, 
besides  the  notarj^^,  two  worthy  and  discreet  persons*  to  be 
present   and    take  minutes   or   notes   of   the   examination." 

'  Ex  L.  3  ff.  de  Test.;  Nov.  60,  cap.  2.  -  Instr.  cit.,  §  11,  Singuli. 

'  Instr.  cit.,  §  15,  Quod  si  testes. 

*  Cap.  2,  de  Jud.,  in  6°  (ii.  i)  ;  Reiff.,  1.  c,  n.  504. 

^  Cap.  37  et  52,  de  Test.;  Reiff.,  1.  c,  n.  508.  ^  Reiff.,  1.  c,  n.  501. 


96  Of  Judicial  Proofs, 

{d)  When  the  witness  has  finished  his  testimony,  it  should  be 
read  for  him,  especially  if  he  desires  it,  by  the  notar}^  so  that 
he  may  see  whether  he  has  been  rightly  understood,  and  also 
that  he  may  correct  whatever  he  may  have  said  erroneously 
or  inconsiderately.*  (r)  Finally,  he  should  be  cautioned  to 
keep  silence  regarding  his  deposition. 

846.  Secondly,  On  what  matters  should  witnesses  be  ex- 
amined ?  I.  First,  certain  general  questions  {interrogatoria 
generalid)  should  be  put  to  them — namely,  what  their  age  is, 
their  occupation,  whether  they  have  any  interest  in  the  case, 
whether  the}^  are  enemies  or  friends  of  the  party  for  whom 
they  are  about  to  testify,  and  the  like.  2.  Next  they  should 
be  examined  on  the  cause  itself — that  is,  not  only  on  the  prin- 
cipal facts  in  the  case,  but  also  on  all  the  particulars  or  cir- 
cumstances ;  on  the  time,  place,  persons,  etc.  Thus  Pope 
Innocent  III.  says :  "  Mandamus  quatenus  recipias  testes 
quos  utraque  pars  ...  duxerit  producendos,  ac  eos  diligen- 
ter  examinari  procures ;  et  de  singulis  prudenter  inquirens, 
de  causis  videlicet,  personis,  loco,  tempore,  visu,  auditu, 
scientia,  credulitate,  fama,  certitudine,  cuncta  plene  con- 
scribas." "  Hence  they  are  to  be  interrogated,  among  other 
things,  not  only  whether  they  know  the  facts  in  the  case, 
but  also  how  they  came  to  know  them — namely,  whether 
they  were  eye  or  ear  witnesses,  etc.  In  other  words,  they 
should  be  asked  to  give  reasons  for  their  statements. 

847.  Here  we  observe,  that  the  judge  (we  speak  of  the 
ecclesiastical  judge)  cannot,  either  in  civil  or  criminal  causes, 
ask  any  leading  question  {quaestio  suggestivd) — that  is,  a  ques- 
tion so  framed  as  to  indicate  the  answer  desired — v.g..  Did 
you  see  Titius  killing  Caius  on  such  a  day  and  in  such  a 
place  ?  *  Hence  the  examination  of  the  witnesses  must  be  by 
general  questions,  ascending  gradually  to  the  more  particular 
matters  or  facts  in  the  case.     The  same  holds  true  of  the 

'  Schtnalzg.,  1.  c,  n.  96.  ^  Cap.  37,  de  Test.  ^  Reiflf.,  1.  c,  n.  516-519. 


Of  Judicial  Proofs.  97 

examination  of  an  accused  in  criminal  causes.  Hence  the 
judge — or,  as  the  case  may  be,  the  Commission  of  Investiga- 
tion, with  us — should  not  at  once  ask  the  accused,  v.g.^ 
whether  he  killed  Caius.  But  he  should  begin  by  first 
asking  general  questions — v.g.,  whether  he  knows  Caius,  or 
was  present  when  he  was  killed ;  whether  he  had  any  quar- 
rel with  him,  and  thus  gradually  come  to  the  crime  itself.' 

848.  Thirdly,  How  should  a  witness  give  his  testimony  ? 
I.  In  person  and  orally,  not  merely  in  writing.  The  law  of 
the  Church  expressly  says :  "  Testes,  per  quamcunque  scrip- 
turam  testimonium  non  proferant,  sed  praesentes  de  his,  quae 
noverunt  et  viderunt,  veraciter  testimonium  dicant."  *  The 
reason  is,  that  the  judge,  especially  in  criminal  causes,  is 
greatly  aided  in  estimating  the  value  of  the  testimony,  by 
the  countenance,  behavior,  etc.,  of  the  witness.^  2.  His  tes- 
timony should  be  clear,  definite,  and  certain,  not  vague  or 
doubtful.  Hence,  if  he  speaks  doubtfully, — v.g.,  if  he  says, 
"  I  believe,  I  thinly,  unless  I  am  mistaken,  if  I  remember  cor- 
rectly," etc., — his  testimony  should  be  rejected.  3.  Finally, 
he  should  adhere  to  his  testimony,  not  vary  or  change,  now 
saying  one  thing,  then  another  ;  much  less  should  he  contra- 
dict himself.* 

849.  Q.  What  are  testes  singidares  ? 

A.  Witnesses  are  called  {a)  concordant  {contestes)  when 
they  agree  in  their  testimony;  that  is,  when  they  testify  con- 
cordantly  to  one  and  the  same  fact — v.g.,  that  they  saw 
Titius  killing  Caius  in  such  a  place  and  at  such  a  time ;  {p) 
singular  {testes  singidares),  when  they  testify  to  two  different 
acts  or  facts,  so  that  each  one  is,  so  to  say,  alone  in  his  testi- 
mony. This  singularity  or  disagreement  may  regard  {a)  the 
material  facts  in  the  case — v.g.,  if  one  of  the  witnesses  tes- 
tifies that  Titius  stole  a  cow,  another  that  he  stole  a  horse  - 

'  Reiff.,  1.  c,  n.  528.  *  Can.  Testes  15,  C.  3,  q.  9;  et  Can.  3,  C.  5,  q.  2. 

*  Miinchen,  1.  c,  vol.  i. ,  p.  146. 

*  Reiff.,  1.  c,  n.  313;  Schmalzg.,  1.  c,  n.  102. 


98  Of  Judicial  Proofs. 

{b)  the  quantity — v.g.,  if  one  asserts  that  Titius  stole  a  hun- 
dred, another  only  five  dollars ;  (r)  the  quality — v.g.,  if  one 
says  that  the  horse  sold  to  Sempronius  was  lame,  another 
that  he  was  sound  ;  {d)  time  and  place — v.g.,  where  one  wit- 
ness states  that  the  crime  was  committed  on  such-  a  day, 
another  on  another  day,  etc' 

850.  Q.  Now,  do  singular  witnesses  prove  anything  ? 

A.  We  premise:  Witnesses  may  be  singular  or  disagree 
in  three  ways.  First,  by  directly  contradicting  each  other 
in  regard  to  the  same  fact — v.g.,  when  one  of  them  says  the 
theft  was  committed  in  such  a  place  or  at  such  a  time, 
another  in  another  place  or  at  another  time.  Secondly,  by 
testifying  to  two  different  acts  or  occurrences,  which,  how- 
ever, converge  to  one  central  or  main  fact — that  is,  tend  to 
prove  one  and  the  same  thing — if  one  deposes  that  he  saw 
Titius  stealing  the  horse,  another  that  he  heard  Titius  con- 
fessing he  had  stolen  the  horse.  Here,  as  is  manifest,  while 
the  depositions  refer  to  two  different  specifications,  they 
nevertheless  help  each  other  in  proving  the  same  crime  or 
corpus  delicti.  Thirdly,  by  testifying  to  two  different  acts  or 
facts  having  no  connection  with  or  opposition  to  each  other, 
and  consequently  not  tending  to  prove  the  same  thing — v.g., 
if  one  says  Titius  murdered  Caius,  another  that  he  killed 
Sempronius.' 

851.  We  now  answer:  Witnesses  of  the  first  kind,  no 
matter  how  numerous,  even  though  there  were  a  thousand, 
prove  nothing  whatever.'  In  fact,  when  we  said  above* 
that  two  witnesses  constitute  full  proof,  we  added,  provided 
they  agree  in  their  testimony.  In  regard  to  witnesses  of  the 
second  class,  a  distinction  must  be  drawn  between  civil  and 
criminal  causes.  In  civil  causes  they  sometimes  constitute 
full  proof  {probatio  plend),  sometimes  only  half  or  imperfect 

'  Reiff.,  1.  c,  n.  283.  *  Reiff.,  1.  c,  n.  288;  Schmalzg.,  1.  c,  n.  105. 

'  Cap.  9,  de  Probat.  (ii.  19);  Schmalzg.,  1.  c,  n.  106.  *  Supra,  n.  833. 


Of  Judicial  Proofs.  99 

{probatio  semiplend) ;  in  other  words,  a  sufficient  number  of 
such  witnesses — v.g.,  two — sometimes  establishes  a  thing 
fully,  sometimes  only  imperfectly,  just  as  though  they 
agreed  in  each  and  every  particular.'  In  criminal  causes, 
however,  they  do  not  constitute  full  proof,  but  merely  a  pre- 
sumption.* The  reason  is  that  in  these  causes  the  evidence 
must  be  as  clear  as  the  noonday  sun,  and  in  every  respect 
perfect,  full,  and  unobjectionable.'  Hence,  in  criminal  causes, 
two  or  more  witnesses  who  in  any  way  disagree  do  not 
suffice  for  conviction.  This  holds,  of  course,  also  in  the 
United  States,  for  the  simple  reason  that  every  person  is 
entitled  to  be  considered  innocent  until  he  is  fully,  clearly, 
and  juridically  proven  guilty.  Witnesses  of  the  third  class, 
no  matter  how  numerous,  constitute  only  an  imperfect,  not 
a  perfect  proof. 

852.  Q.  What  is  the  force  of  the  testimony  of  contra- 
dictory witnesses  {testes  contrarii)  ? 

A.  A  witness  may  be  contradictory  in  two  ways :  by 
contradicting  {a)  himself,  or  {b)  other  witnesses.  In  the 
latter  case  it  is  important  to  see  whether  the  contradictory 
witnesses  have  been  produced  by  one  and  the  same  party  or 
by  different  parties.  Where  they  are  produced  for  and  by 
the  different  parties, — namely,  some  by  and  for  the  plaintiff, 
others  by  and  for  the  defendant,  and  are  equal  in  number  on 
both  sides — in  other  words,  where  the  number  of  witnesses 
denying  is  equal  to  the  number  affirming  a  thing,  sentence 
must  be  pronounced,  other  things  being  equal,  in  favor  of 
the  accused  or  defendant,  except  in  the  causes  of  marriage, 
dower,  liberty,  etc."  Where  they  are  produced  by  the  same 
party, — v.g.,  by  the  plaintiff, — we  must  again  distinguish  : 
Either  this  party  produces  but  two  witnesses,  and  these  con- 
tradict each   other;  or  he  produces  a  greater  number,  of 

'  Arg.  ex  1.  16,  Cod.  de  Poenis  (9.  47);  Schmalzg.,  1.  c.      '  Reiff.,  1.  c,  n.  307. 
*  L.  25,  Cod.  de  Probat.  (4.  19);  Can.  39,  c.  2,  q.  7.  •*  Ex  cap.  3,  de  Probat. 


lOO  Of  Judicial  Proofs. 

whom  two  or  more  agree  in  their  testimony.  In  the  first 
case,  the  two  witnesses  prove  nothing  whatever ;  in  the 
second,  the  testimony  of  the  two  concordant  witnesses  con- 
stitutes proof,  though  it  is  manifest  that  their  testimony  is 
weakened  by  the  contradictory  assertion  of  their  fellow- 
witnesses.'  Coming  now  to  the  case  of  a  witness  contra- 
dicting himself,  it  is  certain  that  the  testimony  of  a  witness 
who  expressly  contradicts  himself  in  his  judicial  deposition 
is  of  no  value  whatever,^  unless  he  forthwith  corrects  him- 
self.' 

853.  Q.  Do  hearsay  witnesses  {testes  de  miditu  aliend) 
prove  anything? 

A.  We  premise  :  i.  By  hearsay  witnesses  {testes  de  auditu 
aliend)  we  mean  those  who  depose  that  they  have  heard  the 
facts  from  others  worthy  of  belief.*  Contradistinguished 
from  these  witnesses  are  what  are  called  testes  de  sclent ia — 
that  is,  witnesses  who  testify  of  their  own  personal  knowl- 
edge ;  in  other  words,  witnesses  who  testify  to  what  they 
have  learned  through  their  own  senses — v.g.,  by  their  eyes  or 
ears.  Thus  a  witness  who  testifies  that  he  saw  Titius  killing 
Caius  or  heard  him  blaspheming,  is  a  witness  de  scientia." 
2.  Now,  by  the  law  of  the  Church,  only  those  are  proper 
and  competent  witnesses  who  belong  to  the  latter  class,  or 
who  have  received  the  knowledge  of  the  facts  in  the  case 
through  their  own  senses,  and  not  from  others.  This  is  clear 
from  the  Can.  Testes  15,  C.  3,  Q.  9,  where  Pope  Callistus, 
w^riting  to  the  Bishops  of  France,  says:  "  Nee  de  aUis  causis 
vel  negotiis  dicant"  (testes)  "testimonium,  nisi  de  his,  quae 
sub  praesentia  eorum  acta  esse  noscuntur."  The  very  title 
of  this  canon  is :  "  Testes  non  dicant  testimonium  nisi  de  his 
(\\x2ie  praesentialtter  et  veraciter  noverunt." 

854.  We  now  answer:  Hearsay   witnesses  are  not  wit- 

'  Schmalzg.,  1.  c,  n.  107;  Reiff.,  1.  c,  n.  322  sq. 

'  Can.  3,  q.  9;  et  can.  23,  q.  7;  cap.  34,  de  Appell.    '  Cap.  7,  deTest.  cog.  (ii.  21). 

*  Reiff.,  1.  c,  n.  346.  *  lb.,  n.  342. 


Of  Judicial  Proofs.  lOi 

nesses  in  the  proper  sense,  and,  no  matter  how  numerous,  do 
not,  as  a  rule,  prove  anything,  but  constitute  at  most  a  pre- 
sumption.' In  fact,  as  we  have  seen  from  the  Can.  Testes 
above  cited,  a  witness  can  testify  only  to  what  occurs  in 
his  presence  and  is  learned  through  his  own  senses.  This 
applies  more  particularly  to  criminal  causes.  For  in  these 
causes  hearsay  witnesses  not  only  do  not  prove  anything,  but 
do  not  even  constitute  a  presumption  against  the  accused. 
For,  as  we  have  frequently  said,  in  criminal  causes  the  proofs 
must  be  altogether  certain  and  unobjectionable.''  We  said 
above,  as  a  rule ;  for  there  are  some  exceptions.  Thus  the 
testimony  of  hearsay  witnesses  is  admissible,  and  constitutes 
proof  when  alleged  for  the  defence  of  an  accused.^ 

855.  What  is  meant  by  the  publicatio  attestationum? 
When  the  examination  of  the  witnesses  is  finished,  a  day  is 
appointed  by  the  judge  on  which  the  depositions,  together 
with  the  names  *  of  the  witnesses,  are  read  in  the  hearing  of 
the  contending  parties — namely,  the  plaintiff  and  defendant. 
This  is  called  publicatio  attestationum,  or  the  communication 
of  the  depositions  and  testimony  to  the  parties.  Both  the 
litigants  must  be  cited  to  be  present  at  this  act.  The  reason 
is,  that  the  parties  must  always  be  cited  whenever  anything 
which  affects  them  or  is  likely  to  be  prejudicial  to  them  is 
transacted  in  court.  After  the  publication  of  the  testimony, 
the  judge,  at  the  request  of  the  parties,  is  bound  to  give  them 
a  copy  of  these  depositions,  as  taken  down  by  the  notary,  in 
order  to  enable  them  to  except  to  the  testimony  if  they  wish.' 

856.  Here  the  question  arises :  What  objections  or  excep- 
tions can  be  made  against  witnesses  after  their  depositions 
have  been  published  or  read  before  the  parties  ?  We  dis- 
tinguish between  three  kinds  of  exceptions:  i.  Some,  as  we 
have  seen,'  regard  the  persons  of  the  witnesses — v.g.,  when  it 

'  Reiff.,  1.  c,  n.  360.  '^  lb.,  n.  362.  '  Schmalzg.,  1.  c,  n.  112. 

^  In  causes  of  heresy  the  names  of  the  witnesses  are  not  made  known. 
'  Schmalzg.,  1.  c,  n.  116.  «  Supra,  n.  825-833. 


I02  Of  Judicial  Proofs. 

is  objected  that  the  witness  is  disqualified  because  of  his 
enmity,  bad  reputation,  etc.  2.  Others  have  reference  to 
the  mode  of  examination — v.g.,  when  it  is  objected  that  the 
witnesses  have  not  been  examined  under  oath  (where  the 
oath  is  obHgatory),  or  not  apart  from  each  other.'  3.  Others, 
finally,  relate  to  the  testimony  itself — v.g.,  when  the  objec- 
tion is  raised  that  the  testimony  is  vague,  indefinite,  contra- 
dictory, not  to  the  point,  etc," 

857.  We  now  answer :  Exceptions  of  the  third  class — 
namely,  those  which  are  advanced  against  the  testimony 
itself — can  evidently  be  made  only  after  the  publication  of  the 
testimony,  for  the  simple  reason  that  this  testimony  does  not 
become  known  (in  case  the  parties  are  not  allowed  to  be 
present  at  the  examination  of  the  witnesses) '  to  the  parties 
before  that  time.  Exceptions  of  the  second  class — that  is, 
exceptions  against  the  mode  of  examination — can  be  made, 
as  appears  from  the  nature  of  the  case,  partly  before  and 
partly  after  the  publication.  But  exceptions  of  the  first 
class,  or  exceptions  against  the  persons  of  the  witnesses, 
must,  as  a  rule,  be  made  before  the  publication  of  the  depo- 
sitions ;  in  other  words,  they  must  be  made  when  the  wit- 
ness, as  we  have  seen,^  is  about  to  take  the  oath,  prior  to 
deposing.^  The  reason  is  chiefly,  that  there  is  ground  to 
fear  that  after  the  witness's  deposition  becomes  known,  the 
party  against  whom  he  has  testified,  being  irritated  by  the 
adverse  testimony,  will  maliciously  try  to  invent  causes  of 
suspicion  against  the  witness.* 

858.  We  have  said,  as  a  rule ;  for  there  are  three  cases 
where  exceptions  can  be  made  against  the  persons  of  the 
witnesses,  even  after  the  publication  of  their  testimony — 
namely,  i,  where  the  defendant  or  accused  has,  prior  to  the 
examination  of  the  witness,  or  the  publication  of  his  testi, 

'  Supra,  n.  836-844.  *  Supra,  n.  846-849.  '  Cf.  supra,  n.  840,  841. 

*  Supra,  n.  837.  '  Cap.  31,  de  Test.  ^  Schmalzg.,  1.  c,  n.  12S,  129. 


Of  Judicial  Proofs.  103 

mony,  reserved,  as  is  now  usually  done,  the  right  to  make 
such  objections.  2.  If  the  facts  upon  which  the  objection  is 
based — v.g.,  the  fact  that  the  witness  has  been  bribed,  is  infa- 
mous, etc. — become  known  to  the  defendant  only  after  the 
publication  of  the  testimony.  3.  Where  the  defendant  gives 
under  oath  a  reasonable  excuse  for  not  having  sooner  made 
the  objection  ;  nay,  when  there  is  question  of  absolute  disa- 
bility of  the  witness — v.g.,  where  the  witnesses  are  excommu- 
nicates vitandi,  or  infamous  b}'^  law,  he  can  object  to  them, 
even  though  he  does  not  allege  any  excuse  under  oath,  as  just 
stated.'  Note. — It  is  advisable,  as  a  rule,  to  object  first  against 
the  deposition  or  the  mode  of  examination  of  the  witness, 
and  only  afterwards,  if  the  force  of  his  testimony  cannot  be 
otherwise  broken  down,  against  his  person." 

859.  We  observe  that,  ordinarily,  exceptions  against  a 
witness  do  not  hinder  his  being  admitted  and  examined,  the 
judge  being  vested  with  discretionary  power  to  defer  his 
decision  on  the  exception  to  the  end  of  the  trial.*  The  rea- 
son is,  that  during  the  progress  of  the  trial  it  may  become 
apparent  that  there  is  sufficient  other  evidence,  exclusive  of 
that  of  the  witnesses  in  question,  to  enable  the  judge  to  de- 
cide the  cause,  and  that,  consequently,  it  is  useless  to  dispute 
about  the  admissibility  of  the  objectionable  witnesses.*  We 
say,  ordinarily ;  for  there  are  some  exceptions,  of  which  the 
following  are  chiefly  to  be  noted  :  i.  Where  a  defect  or  disa- 
bility is  objected  to  a  witness,  which  is  notorious,  or  at  least 
can  be  proved  without  delay ;  ^  2.  Where  there  is  a  presump- 
tion of  law  against  the  witness ;  3.  Where  the  witness  is 
accused  of  being  a  deadly  enemy  of  the  person  against  whom 
he  is  produced  ; "  or  that  he  is  exconimunicatus  vitandus^ 

860.  Can    witnesses    be    compelled    to   testify    in    eccle- 

'  Ex  cap.  31,  cit.,  de  Test.  (ii.  20);  Schmalzg.,  1.  c,  n.  129. 

*  Schmalzg.,  1.  c,  n.  135.  ^  Auth.  Si  Testes,  Cod.  de  Test. 

*  Schmalzg.,  1.  c,  n.  136.  ^  Cap.  7,  de  Test. 

*  Authent.,  cit.  '  Cap.  2,  de  Excep.,  in  6°. 


I04  Of  Judicial  Proofs. 

siastical  courts?  They  can,  and  that  by  censures — namely, 
excommunication  in  the  case  of  laics,  and  suspension,  excom- 
munication, and  dismissal  in  the  case  of  ecclesiastics.  Pope 
Alexander  III.  thus  lays  down  the  law,  which  is  still  in  force : 
"  Mandamus  quatenus  testes  ab  alterutra  partium  in  suae 
assertionis  testimonium  invocatos,  ne  veritatem  occulterit, 
diligentius  moneas  et  inducas.  Si  autem  odio  vel  gratia, 
vel  timore  se  subtrahant,  cos  ad  ferenduni  testimonium  .  .  . 
ecclcsiastica  districtione  compcllas."^  However,  before  re- 
course is  had  to  compulsory  measures  or  censures,  suasion 
should  be  employed,  as  is  evident  from  the  above  decretal  of 
Alexander  III.*  Where  censures  have  to  be  resorted  to, 
they  must  be  preceded  by  the  usual  warning  or  mo7iitio 
canonka.^  We  observe,  however,  that  it  is  scarcely  advisable 
at  the  present  day  to  make  use  of  censures  to  compel  wit- 
nesses to  testify  in  ecclesiastical  courts.  For  these  penalties, 
as  Card.  Soglia*  says,  are  not  unfrequently  disregarded  by 
the  laity. 

86i.  Do  the  above  laws,  authorizing  ecclesiastical  courts 
to  compel  witnesses  to  testify,  and  that  even  under  pain  of 
censure,  apply  also  in  the  United  States?  They  do,  at  least 
per  se.  The  reason  is,  the  common  good  requires  here,  as 
elsewhere,  that  the  ecclesiastical  judge  should  have  power 
to  compel  witnesses  to  testify,  "  ne  Veritas  occultetur,  et  ne 
malus  ut  bonus  aestimetur."  *  We  say,  per  se;  for  it  is  mani- 
fest, for  the  reason  given  already,  that  it  were  hardly  advis- 
able to  resort  to  compulsion  or  censures  in  this  country. 
Hence,  also,  the  Instruction  of  the  S.  C.  de  Prop.  Fide, 
July  20,  1878,  ordains  that  where  witnesses  are  unwilling  to 
come  and  testify  before  the  Commission  of    Investigation, 

J  Cap.  I,  de  Test.  cog.  (ii.  21);  cf.  ib.,  cap.  2,  3,  4,  5,  6,  7,  8,  9,  10,  11 ;  L. 
16  et  19,  C.  de  Test.  (iv.  20);  Reiff.,  1.  2,  t.  21,  n.  2;  Schmalzg.,  1.  2,  t.  21, 
n.  I. 

^  Cf.  cap.  3,  de  Test.  cog.  '  Miinchen,  1.  c,  vol.  i.,  p.  140. 

*  Inst,,  vol.  ii.,  p.  295,  ed.  Vecch.  *  Reiff.,  1.  c,  n.  5. 


Of  yudicial  Proofs.  105 

the  latter  body  shall  appoint  at  least  two  of  its  members  to 
go  to  the  witnesses  for  the  purpose  of  obtaining  all  the 
information  possible.  Here  are  the  words  of  the  Instruc- 
tion :  "  Quod  si  testes  nolint  .  .  .  Consilio  assistere  .  .  ,  duo 
saltem  ex  Consilio  deputentur,  qui  testes  adeuntes  .  .  .  re- 
lationem  suae  investigationis,  ad  Consilium  deferant  .  .  ,"  * 

862.  But  in  case  it  were  deemed  advisable  to  compel 
witnesses  to  testify  before  our  Commissions  of  Investigations, 
the  mode  of  procedure  would  seem  to  be  this  :  The  Com- 
mission having  the  right  to  summon  witnesses,''  has  also  the 
right  and  duty  to  declare  them  contumacious,— /.£".,  in  con- 
tempt of  the  Commission,  in  case  they  refuse  to  appear, 
without  alleging  any  reasonable  excuse,  and  to  report  this 
contumacy  to  the  bishop,  whose  right  and  duty  it  is  to 
inflict  upon  the  recalcitrant  witnesses  the  proper  ecclesi- 
astical censures,  after  due  warning. 

Art.  IV. 
3.  Of  Instruments. 

863.  The  next  species  of  proofs  is  called  instruments 
( instrtnncnta,  doaivicntd).  By  instruments  we  here  mean 
any  writing  drawn  up  or  produced  for  the  purpose  of  prov- 
ing something.^  They  are  divided  into  public  and  private. 
A  public  instrument  {instrumentuin  publicum),  in  the  strict 
sense  of  the  word,  is  one  which  is  drawn  up  {a)  by  public 
authority — that  is,  by  a  public  official,  or  person  authorized 
by  law,  namely,  by  a  notary ;  {U)  with  the  requisite  formali- 
ties." We  say,  in  the  strict  sense ;  for  in  a  broad  or  general 
sense  all  instruments  which  have  public  authority,  and  con- 
sequently all  authentic  private  instruments,  are  considered 

'  Instr.  cit.,  §  15,  Quod  si  testes.  *  lb.,  §  10,  Quod  si  ulterior. 

®  Schmalzg.,  1.  11.,  t.  22,  n.  i;  Devotl,  1.  3,  t.  9,  §  20. 

*  Ex  cap.  2,  6,  de  Fid.  Instrum.  (ii.  22);  Relff.,  1.  11.,  t.  22,  n.  7. 


io6  Of  Judicial  Proofs. 

public  instruments.'  We  say,  moreover,  with  the  requisite 
formalities.  Now,  what  formalities  are  chiefly"  required  in 
a  public  instrument  proper?  i.  It  should  begin  with  the  in- 
vocation of  the  name  of  God,  thus :  In  the  name  of  God, 
Amen  ;  or.  In  the  name  of  the  Most  Holy  Trinit)\  2.  It 
should  be  properly  dated — that  is,  give  the  day,  the  month, 
and  year  of  our  Lord  when  the  document  was  written.  3. 
It  should,  moreover,  state  the  name  of  the  reigning  pope, 
and  supreme  civil  ruler ;  the  place — />.,  not  only  city  or 
town,  but  also  house  and  street — where  the  transaction  men- 
tioned in  the  instrument  took  place.  4.  The  names  also 
of  the  witnesses  who  were  present  when  the  transaction 
which  the  instrument  records  took  place.  Two  witnesses 
are  at  least  required.  It  is  not,  however,  necessary  that  the 
witnesses  should  themselves  sign  the  instrument,  it  being 
sufficient  for  the  notary  to  mention  their  names  in  the  docu- 
ment. 5.  The  notary  himself  must  sign  his  name  to  the  in- 
strument, which  should  not  contain  any  abbreviations.' 

864.  Public  instruments  in  the  proper  sense  of  the  word 
are  divided  {ci)  into  protocols  {protocolld) — that  is,  rough 
drafts  or  minutes  of  a  transaction,  which  are  afterwards 
written  out  in  a  fuller,  clearer,  and  more  orderly  manner; 
{b)  transumpts  {transumpta) — that  is,  the  protocols  as  written 
out  in  the  full  manner  just  stated,  provided  they  (that  is,  the 
transumpts)  are  original  and  authentic.^ 

865.  Private  instruments  {instrumenta  privatd)  are  those 
which  are  written  either  by  a  private  person,  or  without  the 
prescribed  formalities.*  They  are  divided  into  authentic  and 
non-authentic.  Authentic  private  instruments  {instrumenta 
privata  autJienticci)  are  those  which  are  writteh  indeed  by 
private  persons,  but  {a)  are  attested  or  signed  by  competent 
witnesses,  {b)  or  bear  an  authentic  seal,  {c)  or  are  authenti- 

'  Reiff.,  1.  c,  n.  6,  14,  16.         '  Reiff.,  1.  c,  n.  17-29;  Schmalzg.,  1.  c,  n.  13, 

'  Schmalzg.,  1.  c,  n.  2. 

*  lb.,  n.  36;  Kutschker,  Eherecht,  vol.  v.,  p.  871;  Miinchen,  1.  c,  p.  162. 


Of  Judicial  Proofs.  107 

cated  in  some  other  customary  lawful  manner.  The  follow- 
ing are  authentic  private  instruments:  i.  All  judicial  acts 
{acta  judicialid) — that  is,  the  minutes  and  records  of  judicial 
proceedings  written  by  persons  appointed  by  the  court, 
even  though  not  notaries.'  2.  Writings  taken  from  the  files 
of  public  archives — v.g.^  episcopal  or  diocesan  archives. 
3.  Writings  drawn  up  indeed  by  private  persons,  but  bearing 
a  public  or  authentic  seal — v.g.,  of  a  bishop,  or  corporation 
having  the  right  to  use  a  seal.  4.  Writings  or  letters  of 
private  persons,  which  are  subscribed  by  three,  or  sometimes 
only  by  two,  witnesses  still  living,  and  verifying  their  signa- 
ture." 5.  Parochial  registers  of  baptisms,  marriages,  etc. 
Non-authentic  private  instruments  {instrumenta  privata  non- 
authenticd)  are  those  writings  or  letters  of  private  persons, 
which  are  not  authenticated  in  the  above  manner,  as  ordi- 
nary letters.' 

866.  Force  of  instruments. — A  public  instrument — a  pro- 
tocol as  well  as  a  transumpt — constitutes  of  itself,  and  with- 
out any  other  corroborative  evidence,  full  proof,  either  in 
favor  of  or  against  the  party  producing  it,  until  the  contrary 
is  proved,  provided  the  original  and  not  merely  the  copy  be 
produced.^  We  say,  protocol  as  well  as,  etc.  Here  we 
observe  that  some  canonists  contend  that  the  protocol,  being 
but  an  inchoate  instrument,  does  not  constitute  full  proof. 
However,  the  contrary  opinion  is  more  commonly  held.  We 
say,  moreover,  0/  itself,  etc. ;  that  is,  one  instrument  of  this 
kind  has  the  same  force  as  two  concordant  and  unexception- 
able witnesses.^  We  say,  again,  until  the  contrary  is  proved ; 
for  even  pubhc  officials  may  commit  fraud  or  error.  Hence, 
when  such  deception  or  error  is  proved,  the  instrument  loses 
its  force  or  authority.  We  say,  finally,  provided  the  original, 
etc. ;  for  credence  or  belief  is  not  easily  given  to  a  copy, 

■  Ex  cap.  II,  de  Prob.  (ii.  19).     ^  Ex  cap.  2,  de  Fid.  instr.     '  Reiff.,  1.  c,  n.  143. 

^  Ex  cap.  I,  2,  de  Fid.  instr.;  L.  15,  C.  de  Fid.  instr.  (iv.  21. 

^  Cf.  cap.  10,  de  Fid.  instr.  (ii  22).  ^ 


Io8  Of  Judicial  Proofs. 

except  it  be  lawfully  or  properly  taken  from  the  original  by 
a  public  person.* 

867.  What  has  been  said  concerning  the  force  of  public 
instruments  proper,  applies  also  to  authentic  private  instru- 
ments. For,  as  we  have  seen  above,"  these  latter  writings 
have  the  same  force  and  effect  as  public  instruments  proper.' 

868.  But  a  non-authentic  private  instrument  constitutes, 
generally  speaking,  full  proof  {a)  only  against  the  writer 
himself,  and  that  {b)  provided  he  acknowledges  it  as  his 
own  or  as  written  by  himself,  ic)  or  when  (in  case  he  denies 
having  written  it)  the  authenticity  or  genuineness  is  proved ; 
otherwise  the  instrument  proves  nothing.*  We  say,  first, 
provided  he  (the  writer)  acknowledges  it  as  his  oiun ;  for  such 
an  acknowledgment,  when  made  in  writing,  even  though 
extrajudicial,  has  the  force  of  a  judicial  confession.'  We 
say,  secondly,  when,  in  case  he  denies,  etc.;  for  if  the  alleged 
or  presumed  writer  denies  that  he  wrote  the  letter,  or  con- 
sented to  its  being  written,  the  adversary  on  producing  the 
letter  or  instrument  must  prove  it — v.g.,  by  comparison  of 
handwriting,  or  by  competent  witnesses  who  testify  that 
they  were  present  and  saw  him  write  the  letter.  Three 
such  witnesses  are  required.'  We  say,  finally,  only  against 
the  writer  himself ;  and  in  this  respect  public  and  authentic 
private  instruments  differ  from  non-authentic  private  instru- 
ments. The  latter  constitute  proof,  as  a  rule,  only  against 
the  writer,  and  not  in  his  favor  nor  against  a  third  party ; 
while  the  former  prove  either  for  or  against  their  writer  or 
a  third  party/ 

869.  Production  of  instruments  during  the  trial. — To  pro- 

'  Cap.  I  et  16,  de  Fid.  instr.  (ii.  22)  ;  Soglia,  ed.  Vecch.,  vol.  ii.,  p.  296; 
Schmalzg.,  1.  c,  n.  22-36. 

*  Supra,  n.  863.  '  Reiff.,  1.  c,  n.  14  et  16. 

*  L.  5,  C.  de  Prob.  (iv.  19);  ex  cap.  2,  de  Fid.  instr. ;  Reiff.,  1.  c,  n.  158,  170. 
s  L,  26  ff.  Depositi  (16.  3);  Reiff.,  1.  c,  n.  170,  173;  Schmalzg.,  1.  c,  n.  77. 

*  Reiff.,  1.  c,  n.  163.  '  lb.,  n.  12,  174. 


Of  Jtidicial  Proofs,  109 

duce  an  instrument  {producere  instrtimenium)  or  document  or 
writing,  is  to  submit  it  to  the  court  or  judge  for  the  purpose 
of  proving  an  allegation.  This  production  can  take  place, 
ordinarily,  only  after  the  litis  contestatio  or  making  of  the 
plea,  or  where  no  formal  litis  co?ttestatio  is  required,  after 
the  act  which  is  construed  as  the  litis  contestatio.  The  reason 
is,  that  proofs  of  whatever  kind — whether  by  witnesses  or 
otherwise — cannot,  generally  speaking,  be  submitted  to  the 
court  before  the  plea/ 

870.  Is  a  litigant  bound  to  show  his  instruments  to  the 
opposing  party  ?  We  distinguish  between  the  plaintiff  or 
prosecution  and  the  defendant  or  accused.  It  is  certain  that 
the  plaintiff  or  prosecutor  is  obliged  to  exhibit  his  instrument 
to  the  defendant;  but  the  latter  is  not,  as  a  rule  bound  either 
in  civil  or  criminal  causes  to  communicate  his  documents  to 
the  plaintiff  or  prosecution."  The  reason,  among  others,  is 
that  the  defendant  or  accused  is  an  unwilling  party  to  the 
trial,  and  appears  merely  to  defend  himself,  not  to  cause  any 
damage  to  another  person.  Hence  it  is  not  strange  that  the 
law  (we  speak  of  canon  law)  should  be  more  favorable  in  this, 
as  in  similar  matters,  to  the  defendant  or  accused.' 

871.  We  said,  "is  not,  as  a  rule,  bound;"  for  there  are 
some  exceptions.  Thus  the  accused  or  defendant  must  show 
his  instruments  to  his  opponent — v.g.,  (a)  where  the  instru- 
ments do  not  belong  exclusively  to  him  {i.e.,  defendant),  but 
are  common  property.*  Thus  the  judge  or  notary  is  bound 
to  show  all  the  acts  or  minutes  of  the  trial  to  any  of  the 
interested  parties,  and,  consequently,  also  to  the  plaintiff  or 
prosecution,  even   to  the  prejudice  of  the  defendant.     For 

*  Ex  cap.   un,   de  Lit.   cont. ;  cap.    i  et  seq.,  ne  lit.  non  cont. ;  Reiff.,  1.   2, 
t.  19,  n.  142  sq. 

'  Cap.  I,  de  Probat.  (ii.  19);  cap.  5,  de  Fid.  instr.,  L.  7  ff .  de  Testibus;  L.  i 
et  4,  Cod.  de  Eden.  (ii.  i);  Schmalzg.,  1.  2,  t.  19,  n.  42. 
^  Schmalzg.,  1.  c,  n.  42;  MUnchen,  1.  c,  vol.  i.,  p.  168. 

*  Cap.  12,  de  Fid.  instr.;  ib.,  Glossa,  v.  Communium. 


no  Of  Judicial  Proofs. 

these  acts  are  public  or  common  property.'  {h)  Again,  where 
the  defendant  submits  an  instrument  to  prove  an  allegation 
which  is  in  his  favor,  he  must  submit  it  to  his  opponent.  For 
he  is  privileged  against  being  obliged  to  produce  his  instru- 
ments only  as  against  himself — i.e.,  when  they  are  simply  to 
be  used  by  his  adversary  as  against  him.* 

872.  How  is  an  instrument  to  be  shown  to  the  opposing 
party  ?  Where,  in  accordance  with  the  rules  just  laid  down, 
a  party  is  obliged  to  show  {edere  instriimcntuni)  his  docu- 
ments to  the  other  party,  it  is  done  in  the  following  manner  : 
The  party  who  is  to  show  the  document  first  presents  it  to 
the  judge  or  court.  It  is  then  read  in  its  entirety  before  the 
judge  or  his  deputy  and  the  opposing  party,  who  is  then 
allowed  to  take  a  copy  of  so  much  of  the  paper  as  relates  to 
the  matter  under  discussion,  provided  the  paper  treats  of 
different  matters,  and  not  simply  of  the  one  which  is  in  con- 
troversy.^ Where  the  instrument  treats  exclusively  of  the 
matter  in  dispute^  the  opponent  is  allowed  to  copy  the  whole 
document*  Of  course,  it  is  manifest  that  the  opponent,  who 
demands  to  see  the  instrument,  must  be  cited  to  be  present 
in  court  on  the  day  appointed  by  the  judge  for  its  produc- 
tion, just  as  the  opposing  party  is  to  be  summoned  to  be 
present  at  the  admission  of  witnesses.  Again,  we  observe 
that  the  original  must  be  produced  in  court,  since  belief  is 
•not  usually  given  to  a  copy.*  The  person  submitting  the 
paper  need  not,  however,  leave  the  original  to  the  judge  or 
court,  and  thus  expose  himself  to  the  danger  of  losing  it.  It 
is  sufficient  for  him  to  exhibit  the  original  in  the  manner 
stated,  and  allow  a  copy  to  be  taken.' 

873.  Q-  Can  instruments  be  impugned  or  called  in  ques- 
tion ?    And  if  so,  in  how  many  ways  ? 

'  L.  2,  C.  de  Edendo  (ii.  i);  Reiff.,  1.  2,  t.  22,  n.  249. 

*  Schmalzg.,  1.  c,  n.  44.  '  Cap.  5,  de  Fid.  instr. 

*  Reiff.,  1.  2,  t.  22,  n.  238  sq. ;  Schmalzg.,  1.  2,  t.  22,  n.  84. 

*  Cap.  I,  de  Fid.  instr.  •  Reiff.,  1.  c,  n.  236. 


Of  Judicial  Proofs.  1 1 1 

A.  They  can,  and  that  chiefly  in  two  respects — namely, 
{a)  either  as  not  genuine,  {U)  or  as  containing  false  state- 
ments. Thus,  first,  a  paper  becomes  suspected  as  having 
been  forged,  and  consequently  its  genuineness  may  be  called 
in  question — v.g,,  when  it  is  not  drawn  up  with  the  requisite 
formalities  (when  there  is  question  of  public  instruments),  or 
not  properly  authenticated.'  Secondly,  even  where  an  in- 
strument is  conceded  to  be  genuine,  it  may  be  attacked  as 
containing  misrepresentations,  or  even  false  statements,  to- 
tally at  variance  with  the  real  facts  of  the  case.  For  it  is 
plain  that  the  writer  of  an  instrument  or  paper,  even  though 
he  is  a  public  official, — v.g.,  a  notary,  or  secretary  of  the  court, 
— may,  either  inadvertently  or  maliciously,  misrepresent  the 
transaction  recorded  by  him.^  Consequently,  where  it  is 
shown — v.g.,  by  competent  witnesses^ — that  the  paper  or  in- 
strument, even  though  genuine,  and  not  forged,  or  interpo- 
lated, does  not  state  the  truth  in  any  essential  point,  it  loses 
all  its  force  and  authority.'' 

Art.  V. 

4.  Presumptions  iPraesumptiones). 

874.  The  next  kind  of  proofs  are  presumptions  {praesump- 
tiones).  A  presumption  is  a  reasonable  conjecture  or  infer- 
ence in  regard  to  a  doubtful  matter,  based  upon  signs  or 
indications,  which  usually  lead  very  near  the  truth. ^  Schmalz- 
grueber's "  definition  comes  to  the  same.  He  saj^s :  "  A  pre- 
sumption is  a  conjecture  or  opinion  based  upon  some  prob- 
able sign  or  indication,  and  submitted  as  proof,  or  assumed 
by  the  judge  in  proof  of  a  doubtful  matter."  ^     Presumptions, 

'  Cap.  6,  de  Fid.  instr.  *  Munchen,  1.  c,  p.  165. 

3  Cap.  10,  de  Fid.  instr.  «  Cf.  Reiff.,  1.  c,  n.  286.  ' 

'  Todeschi,  Man.  du  Droit  Can.,  I.  2,  t.  23,  n.  i,  p.  151. 

«  L.  2,  t.  23,  n.  I.  •»  Cf.  Reiff.,  1.  2,  t.  23,  n.  3. 


1 1 2  Of  Judicial  Proofs. 

therefore,  constitute  what  is  called  in  civil  law  circumstantial 
evidence.  In  fact,  the  word  pracsiimptio  comes  from  the 
two  words  prae  and  sumptio,  which  mean  the  taking  a  thing 
for  granted  or  to  be  true  prior  to  or  without  being  directly 
and  positively  proved.  Presumptions  do  not  establish  or 
prove  a  thing  or  fact  directly,  but  only  inferentially. 

875.  Division. — Presumptions  are  divided  into  pracsump- 
tiones  hominis  and  juris,  according  as  they  come  from  persons 
or  from  the  law  (in  our  case,  canon  law).  Hence  a  presump- 
tion is  personal  or  of  man  i^pracsumptio  hominis)  when  it  is 
derived  from  personal  observation — namely,  when  a  person 
from  certain  signs  or  circumstances  infers  something,  or  as- 
sumes a  thing  to  be  true,  until  the  contrary  is  proved.'  This 
personal  presumption  is  {a)  either  rash  (ypraesninptio  tcmcrarid) 
— namely,  when  it  proceeds  from  slight  or  frivolous  reasons, 
and  then  it  is  called  suspicion,  rather  than  presumption ; 
{b)  probable,  reasonable.,  or  grave  [praesumptio  probabilis), — 
namely,  when  it  arises  from  conjectures  or  signs,  capable  of 
persuading  a  prudent  person ;  in  other  words,  when  it  is 
based  upon  signs  or  facts  which  are  very  frequently  connected 
with  what  is  presumed — v.g.,  if  a  woman  is  suspected  of  un- 
chastity,  because  she  is  frequently  seen  alone  wnth  young 
men,  especially  if  it  be  in  solitary  places,  (r)  Violent  {prae- 
stiviptio  violenta,  veheinens),  when  it  is  based  upon  several 
signs,  or  even  one  sign  or  fact,  which  points  very  strongly 
and  forcibly  to  the  fact  presumed,  in  such  manner  as  to  leave, 
morally  speaking,  no  doubt  as  to  the  thing  presumed.  Such 
is  the  presumption  that  fornication  was  committed,  "si  solus 
cum  sola,  nudus  cum  nuda,  in  eodem  lecto  sunt  deprehensi.' 

876.  A  presumption  is  legal  or  of  the  law  {praesumptio j'lcris) 
when  the  law  itself  infers  something  from  certain  circum- 
stances or  contingencies.  The  difference  between  the  prae- 
sumptio homiriis  and  the  praesumptio  Juris  is  that  in  the  latter 

'  Schmalzg.,  1.  c,  n.  4.  *  Schmalzg.,  1.  c.  n.  5. 


Of  Judicial  Proofs.  113 

case  the  law  itself  (in  our  case,  canon  law)  enacts  or  directs 
that  from  certain  facts  or  circumstances  the  existence  of  some 
other  fact  is  to  be  inferred,  while  in  the  former  case  the  infer- 
ence or  conjecture  is  based  on  the  reasoning  of  the  judge.' 

877.  The /rrt<f^z/;;////(?j'>^rw  is  subdivided  into  (^)  the  sim- 
ple presumption  of  law — namely,  that  which  holds  a  thing 
to  be  true,  not  absolutely,  but  only  till  the  contrary  is  proved, 
and  therefore  admits  of  proof  to  the  contrary ;  {b)  the  prae- 
siimptio  juris  ET  DE  JURE,  or  that  which  holds  a  thing  to  be 
absolutely  true,  in  such  a  manner  as  not  to  admit,  generally 
speaking,  of  proof  to  the  contrary .*  Instances  of  both  kinds 
of  presumptions  of  law  are  found  in  various  parts  of  the 
decretals.  We  shall  give  only  a  few.  Thus  the  law  of  the 
Church,  by  simple  presumption,  takes  it  for  granted  id)  that 
a  person  born  and  brought  up  among  Christians  is  baptized; ' 
{b)  that  one  who  is  seven  years  old  has  the  use  of  reason.* 
In  like  manner,  the  law  of  the  Church  takes  it  for  granted, 
by  presumption  which  is  juris  ct  de  JURE,  that  a  woman 
who  has  lived  for  a  year  and  a  half  spontaneously  with  a 
man  whom  she  married  compulsorily,  has  freely  consented 
to  the  marriage.^ 

878.  Effects  of  presumptions. — The  effect  of  a  simple  pre- 
sumption of  law  {praesumptio  juris  tantuni)  is  that  a  thing  is 
held  to  be  true  until  the  party  against  whom  it  stands  proves 
the  contrary.  Hence  it  causes  the  burden  of  proof  to  fall 
upon  the  latter,  so  that,  unless  he  overthrows  the  presumption 
by  sufficient  proof  to  the  contrary,  the  facts  against  him  are 
considered  true,'  and  sentence  may  be  pronounced  accord- 
ingly, at  least  in  civil  causes.  The  effects  of  a  praesumptio 
juris  et  de  jure  are,  among  other  things,  i,  that  it  causes  the 
fact  presumed  to  be  taken  as  completely  true  or  proven,  and 
therefore  ordinarily  excludes  any  proof  tending  to  show  the 

'  lb.,  n.  7;  Kutschker,  1.  c,  vol.  v.,  p.  830,  *  Schmalzg.,  1.  c,  n.  7. 

^  Cap.  3,  de  Presbyt.  non.  bapt.  (3.  43).  ^  Cap.  un.  de  Desp.  impub.,  in  6°. 

^  Cap.  21,  de  Spons.  (iv.  i);  Schmalzg.,  1.  c,  n.  9.       *  Ex  cap.  2,  4,  de  Prob, 


114  Of  Judicial  Proofs, 

contrary.'  We  say,  ordhiarily ;  since  there  are  a  number  of 
exceptions,  for  which  see  Schmalzgrueber.^  2.  It  deprives 
the  party  against  whom  it  militates  of  the  right  of  appealing. 
For  this  party  is  regarded  as  both  convicted  and  as  having 
made  a  judicial  confession.^  3.  Sentence  may  be  pronounced 
in  accordance  with  it. 

879.  A  praesuinptio  hominis,  when  violent,  constitutes  in 
civil  causes,  at  least  when  not  of  too  great  importance,  full 
proof,  so  long  as  the  contrary  is  not  proved,  and  therefore 
sentence  can  be  pronounced  in  accordance  with  it*  We  say, 
*'  in  civil  causes,  at  least  %vJicre  tJicy  are  not  of  too  great  import- 
ance;'' for,  as  we  shall  presently  see,  mere  presumptions,  even 
though  violent,  do  not  constitute  full  proof  in  criminal 
causes,  nor  in  civil  causes  of  a  grave  nature ;  the  latter  being 
placed  in  canon' law,  owing  to  the  gravity  of  their  character, 
on  an  equal  footing  with  criminal  causes.'' 

880.  Q.  Do  mere  presumptions  suffice  for  the  conviction 
and  condemnation  of  an  accused  person  in  criminal  causes? 

A.  We  said  above,  that  both  simple  presumption  of  law" 
and  violent  presumption  of  man,'  so  long  as  the  contrary  is  not 
established,  authorize  a  judge  to  pass  sentence  according  to 
them,  ill  civil  causes,  at  least,  when  the  latter  are  not  of  a  very 
grave  character.  The  question  therefore  arises :  Do  mere 
presumptions,  even  though  very  strong  and  violent,  suffice  for 
conviction  and  condemnation,  also  in  criminal  causes  ?  There 
are  four  opinions.  The  first,  which  is  held  by  such  eminent 
canonists  as  Pirhing,  Engl,  Bouix,  denies  that  an  accused  can 
be  convicted  or  condemned  on  mere  presumptions  or  circum- 
stantial evidence,  even  though  violent,  and  contends  that  he 
is  to  be  absolved  in  the  case,  from  the  very  fact  that  no  posi- 

'  Cap.  30,  de  Sponsal.  *  L.  c,  n.  12. 

2  Ex  1.  2,  C.  Quor.  appel.'  non  rec.  (vii.  65). 

*  Ex  cap.  2,  12,  et  13,  de  Praes.  (ii.  23);  Reiff.,  1.  c,  n.  37,  6r;  Schmalzg., 
1.  c,  n.  6. 

*  Reiflf.,  1.  c,  n.  62.  «  Supra,  n.  878,  '  Supra,  n.  879. 


Of  Judicial  Proofs.  1 1 5 

tive  or  direct  proof  exists  against  him.  The  second,  which  is 
directly  opposed  to  the  first,  affirms,  provided  the  presump- 
tions are  violent  and  give  moral  certainty.  The  third  holds 
the  mean  between  the  two  foregoing,  and  contends  that 
mere  presumptions,  even  though  violent,  do  not  indeed  suf- 
fice for  conviction  or  condemnation,  but  yet  authorize  the 
judge  to  inflict  upon  the  accused  a  light  penalty — lighter  than 
that  which  would  have  been  imposed  upon  him  had  he  been 
properly  convicted.  The  fourth  is  that  of  Schmalzgrueber, 
who  holds,  I,  that  the  presumption  which  is  called y^rw^Z  de 
jure  suffices  for  conviction  and  condemnation  ;  2,  that  other 
presumptions,  even  though  very  strong  or  violent  {praesump- 
tiones  violentae,  vehemcntes),  do  not  suffice ;  3,  that  presump- 
tions, whether  of  law  or  of  man,  when  they  are  most  violent 
or  exceedingly  vehement  {praesujnptioncs  vehementissimac), 
and  based  upon  signs  or  circumstances  which  are,  ordinarily 
speaking,  always  connected  with  the  crime,  and  are  conse- 
quently, morally  speaking,  sure  and  undoubted  indications 
of  the  crime,  suffice  for  conviction  and  condemnation,  espe- 
cially in  the  case  of  crimes  which  are  of  an  occult  nature 
and  can  be  proved  only  with  difficulty.  For,  these  presump- 
tions, not  less  than  the  testimony  of  two  unexceptionable 
witnesses,  constitute  a  moral  certainty,  whicih  should  suffice.' 
Moreover,  if  this  theory  were  not  admitted,  these  occult 
crimes  could  scarcely  ever  be  punished. 

881.  Bouix,  as  we  have  said,  holds  the  first  opinion — 
namely,  that  mere  presumptions,  no  matter  how  violent,  do 
not  suffice.  For,  as  he  says,  the  presumptions  always  leave 
a  doubt  as  to  the  guilt  of  the  accused.  Now  the  law  of 
nature,  as  well  as  the  law  of  the  Church,  requires  that  where 
there  is  a  doubt,  sentence  of  condemnation  should  not  be 
passed  in  criminal  causes.  Thus  the  law  of  the  Church  de- 
mands that,  in  these  cases,  the  proofs  must  be  of  the  fullest, 

'  Schmalzg.,  1.  c. ,  n.  i8  sq. 


Ii6  Of  Judicial  Proofs^ 

clearest,  and  most  undoubted  kind — clearer  than  the  noon- 
day sun.  The  Cati.  Sciant  cuncti  2 '  says  :  "  Sciant  cuncti 
accusatores,  earn  se  rem  deferre  debere  .  .  .  quae"  (sit) 
"instructa  apertissimis  documentis,  vel  indiciis  ad  proba- 
tionem  indubitatis,  et  luce  clarioribus  expedita."  Again, 
Pope  Innocent  III.,  speaking  of  a  person  accused  of  heresy, 
expressly  enacts :  "  Propter  solam  suspicionem"  (praesump- 
tionem),  "  quamvis  vchemmtem,  nolumus  ilium  de  tarn  gravi 
crimine  condemnari."  "  Hence  Reiffenstuel' concludes:  "  Ex 
solis  praesumptionibus,  quamvis  vcJiementibiis,  nemo  in  causa 
criminali  condemnandus  est."  For  it  is  better,  as  the 
Roman  law  adopted  by  the  Church  says,  "impunitum 
relinquere  facinus  nocentis,  quam  innocentem  damnare."  *  It 
must  be  observed,  however,  that  those  who  advocate  this 
opinion,  except  those  presumptions  which  leave  no  doubt 
whatever  as  to  the  crime  committed — v.g.,  where  a  wife, 
whose  husband  has  been  absent  a  year,  is  found  enceinte. 
But,  as  Bouix '  observes,  such  presumptions  should  be  called 
direct  proofs  rather  than  presumptions. 

882.  Q.  Can  two  or  more  presumptions  be  combined  so  as 
to  make  full  proof  ? 

A.  I.  They  can,  in  civil  causes,  at  least  when  the  latter  are 
not  of  a  very  grave  nature.  Hence,  in  these  causes,  two  pre- 
sumptions combined  constitute  full  proof,  provided  each  of 
them  constitutes  of  itself  a  half  or  imperfect  proof,*  as  is  the 
case  with-  reasonable  personal  presumptions.'  2.  They  can- 
not, in  criminal  causes  ;  for,  as  Rieffenstuel  *  remarks  in  these 
causes, "  requiruntur  probationes  indubitatae,  ac  luce  meridiana 
clarioresr  Now,  as  the  same  author  continues,  even  a  num- 
ber of  presumptions,  though  combined,  alwa)^s  leave  a  certain 
doubt.  Bouix '  teaches  the  same  when  he  says :  "  In  quibus" 
(causis  criminalibus)  "  duae  pluresve  semiplenae  probationes 

1  Caus.  2,  Q.  8.  *  Cap.  14,  de  Praes.  (ii.  23). 

*  L.  c,  n.  63.  *  L.  5  flf .  de  Poenis  (48.  19).  *  L.  c,  p.  330. 

«  Reiff.,  1.  c,  n.  75.      '  lb.,  n.  34.  «  lb.,  n.  77.  '  L,  c,  p.  305. 


Of  Judicial  Proofs,  117 

non  sufficiunt  ad  condemnandum."  In  like  manner,  two 
presumptions  combined  do  not  produce  full  proof  in  matri- 
monial causes  as  against  the  validity  of  a  marriage  already 
contracted,  nor  in  general  in  civil  causes  of  a  grave  character. 

883.  A  fe%v  of  the  rules  goverjiing  presumptions. — Rule  I. 
The  presumption  is  always  in  favor  of  the  validity  of  an  act 
performed.  Hence  such  act  is  to  be  considered  as  valid  and 
done  in  the  proper  manner  until'  the  contrary  is  proved.* 
Rjile  II.  In  the  United  States,  and  wherever  the  Tridentine 
decree  tametsiis  not  promulgated,  a  man  who  has  had  carnal 
intercourse  with  his  betrothed — i.e.,  with  a  woman  whom  he 
had  previously  promised  to  marry — is  presumed  in  foro 
externa  to  have  acted  cimi  affectu  maritali,  and  consequently 
cannot  be  allowed  to  desert  her,  since  he  is  considered  as 
having  contracted  and  consummated  marriage  with  her. 
Nay,  this  presumption  is  so  strong,  that  it  excludes  any 
proof  to  the  contrary,  and  is  therefore  a  presumptio  juris 
et  DE  JURE."  Hence,  even  though  such  a  man  subsequently 
contracted  another  marriage  in  facie  ccclesiae — i.e.,  publicly 
and  with  all  the  ceremonies  of  the  Church — this  marriage 
would  be  null  and  void. 

884.  Rule  IV.  From  the  past  the  future  is  presumed.' 
Thus  it  is  presumed  that  a  person  who  has  been  good  in 
youth  will  be  good  when  older.  Again,  a  person  who  has 
been  chaste  in  youth  is  presumed  chaste  in  old  age.  So  also 
it  is  presumed  that  a  person  who  has  been  bad  in  the  past 
will  be  the  same  in  the  future.  In  fact,  the  maxim  is : 
"  Semel  mains,  semper  praesumitur  esse  mains,""  unless  the 
amendment  of  life  is  clearly  established.  Rule  V.  Every 
person  is  presumed  good  unless  the  contrary  is  proved.' 
Rule  VI.  Neighbors  are  presumed  to  know  what  has  hap- 
pened in  their  neighborhood." 

'  L.  Si  post  4,  C.  de  Juris  et  facti  ignor.  (i.  i8);  Reiff.,  1.  c,  n.  91. 
^  Cap.  30,  de  Sponsal.  (iv.   i);  ib.  Glossa,   v.  Is  qui,    v.  Contra  praesumpt.; 
Schmalzg.,  1.  c,  n.  24.  3  c^p.  6  et  9,  de  Praesumpt. 

*  Reg.  8  Juris,  in  6°.  *  Cap.  fin.  de  Praes.  «  Cap.  7,  de  Praesumpt. 


ii8  Of  Jtidicial  Proofs. 

Art.  VI. 
The  Oath  as  a  Proof  {^  J ur amentum  litis  decisorimn). 

885.  It  often  happens  that  litigants  can  estabHsh  or  prove 
their  case  but  imperfectly,  not  fully,  because  their  proofs  are 
incomplete — v.g.,  when  they  have  only  one  competent  wit- 
ness, etc.  In  these  cases  recourse  is  frequently  had  to  the 
oath  for  the  purpose  of  deciding  the  matter  or  cause,  which 
otherwise  would  have  to  remain  undecided.  Hence  this 
oath  is  called  {a)  decisive  {^juramentum  litis  decisorium),  because 
its  effect  is  to  decide  the  case  or  end  the  dispute ;  {b)  sup- 
plementary (yjiiramentum  siippletoriiwi),  since  it  supplies  the 
want  of  complete  ordinary  proofs,  or  fills  up  the  gaps  in  the 
evidence  submitted ;  {c)  purgative  (juramentum  purgatoriuin), 
because,  when  taken  by  an  accused,  it  purges  him  of  all 
suspicion  of  guilt. 

886.  As  will  be  seen,  this  oath  must  not  be  confounded 
{a)  with  the  oath  taken  by  witnesses  prior  to  deposing,  as  it 
is  taken  by  the  litigants  themselves — that  is,  by  the  plaintiff 
or  defendant ;  {p)  nor  with  the  oaths  called  respectively 
juramentum.  calumniae,  malitiae  and  veritatis  dicendae,  which 
are  indeed  taken  by  the  litigants  themselves,  but  not  for  the 
purpose  of  staking  the  decision  of  the  cause  upon  them,  but 
simply  to  pledge  themselves  to  act  in  good  faith,  not  mali- 
ciously, and  to  say  the  truth  during  the  trial.* 

887.  This  decisive  oath  is  divided  into  judicial  and  extra- 
judicial, according  as  it  is  taken  in  or  out  of  court  (we  speak 
of  ecclesiastical  courts)  or  judicial  proceedings.  The  decis- 
ive extrajudicial  oath  is  defined  to  be  that  oath  which  one  of 
the  contending  parties,  voluntarily  or  by  agreement,  tenders 
to  the  other  out  of  court,  on  condition  that  he  will  abstain 
from  all  further  judicial  proceedings  if  it  is  taken."     As  is 

'  Reiff.,  1.  2,  t.  24,  n.  12  sq. 

'  Ex  1.  Jusjurandum  17  ff.  de  Jurejur  (xii.  2);  Schmalzg.,  1.  2,  t.  24,  n.  10. 


Of  yudicial  Proofs.  119 

evident,  this  oath  is  made  use  of  {a)  before  the  matter  has 
been  brought  into  court ;  {U)  bj  those  parties  who,  having 
insufficient  proof,  and  fearing  the  expenses  of  a  trial,  are 
anxious  to  end  the  dispute  without  judicial  proceedings. 

888.  The  party  to  whom  this  extrajudicial  oath  is  ten- 
dered is  entirely  free  to  agree  to  take  it  or  not.  But  once 
it  has  been  taken  its  effect  is  to  decide  the  matter,  since  it  is 
regarded  in  the  light  of  a  transaction  or  settlement  between 
the  parties.'  Thus  a  person  who,  upon  having  the  oath 
tendered  him,  swears,  v.g.,  that  he  owes  the  other  party 
nothing,  gains  his  case,  and  acquires  the  same  right  as  if  he 
had  obtained  a  judicial  decision  in  his  favor,  or  settled  the 
matter  with  his  opponent.  This  holds  so  true,  by  the  law  of 
the  Church,  adopting  in  this  respect  the  Roman  law,  that  if 
the  cause  were  afterwards  brought  before  the  judge,  he 
would  be  obliged,  as  a  rule,  to  decide  in  favor  of  the  one 
who  took  the  oath.  For  in  the  case  the  judge  could  not 
inquire  into  the  justice  or  merits  of  the  cause  itself,  but 
simply  whether  the  oath  was  taken,  and  under  what  agree- 
ment. Having  ascertained  this,  he  would  have  to  ratify  the 
agreement  and  subsequent  oath.*  Some  canonists  do  not, 
however,  admit  that  this  oath  cuts  off  recourse  to  judicial 
proceedings  and  finally  settles  the  matter  in  dispute.' 

889.  What  is  the  decisive  judicial  oath?  As  we  have 
seen,  the  decisive  extrajudicial  oath  is  resorted  to  out  of 
judicial  proceedings.  Sometimes,  however,  the  oath  is 
made  use  of  to  decide  causes,  even  in  the  cause  of  judicial 
proceedings  or  the  trial — namely,  when  it  is  found  that  the 
proofs  are  not  sufficient  to  determine  the  matter.  In  this 
case  the  oath  is  called  judicial,  and  is  divided  into  [a)  simply 
judicial  {b)  and  necessary  or  compulsory.  It  is  called  simply 
judicial  {juramefitum  judiciale)  when  offered  by  one  of  the 

■  L.  2ff.  de  Jurejur.       '^  L.  5  ff.  de  Jurejur.,  §  2;  Schmalzg.,  1.  c,  n.  20,  21. 
3Cf.  Reiff.,  1.  c.,n.  134. 


I20  Of  Judicial  Proofs. 

litigants  themselves  to  the  other,  not  indeed  by  order,  but  yet 
by  approval  of  the  judge,  on  condition  that  if  he  takes  it 
he  shall  gain  the  case,  without  any  further  judicial  proceed- 
ings.' The  party  to  whom  it  is  offered,  with  the  approval 
of  the  judge,  cannot  without  just  cause  refuse  to  take  it, 
unless  he  prefers  to  tender  it  in  turn  to  the  opponent  who 
first  tendered  it.*  If  he  refuses  to  do  either,  without  just 
cause,  he  loses  the  case.  We  say,  without  just  cause ;  for 
there  are  many  reasons  why  he  may  decline  to  take  both 
the  simple  judicial  oath  and  the  necessary  oath.  Thus,  he 
may  decline  where  he  has  already  fully  proved  his  case. 
The  judge  may  also  excuse  him  if  he  sees  fit.^  Once  taken, 
it  has  the  effect  of  full  proof,  so  that  sentence  should  be  pro- 
nounced for  the  one  who  has  sworn.  It  has,  moreover,  the 
force  of  a  compromise  or  settlement,  and  of  res  judicata,  and 
consequently  excludes  the  right  of  appeal.* 

890.  The  decisive  judicial  oath  is  -called  necessary  {jura- 
mentum  neccssariiun)  when  the  judge  himself,  having  taken 
cognizance  of  the  cause,  and  finding  the  proofs  insufficient, 
tenders  it  to  one  of  the  litigants.  It  is  called  necessarj'-,  both 
because  the  judge  is  obliged  to  tender  it  when  requested  to 
do  so  by  one  of  the  parties,  or  even  sometimes  ex  officio,  and 
because  the  party  to  whom  it  is  tendered  cannot  refuse  to 
take  it  without  just  cause,  nor  can  he  in  turn  offer  it  to  the 
opponent."  Again,  this  oath,  as  will  be  observed,  is  tendered 
by  the  judge  himself  either  ex  officio  or  at  the  request  of  one 
of  the  parties,  while  the  others  are  tendered  by  the  parties 
themselves  to  each  other.  Finally,  it  may  be  administered 
for  two  purposes :  id)  to  complete  insufficient  proofs ;  {b) 
and  to  purge  an  accused  of  all  suspicion  of  guilt.' 

891.  In  what  causes  can  the  necessary  judicial  oath  be 

'  Schmalzg  ,  1.  c,  n.  24. 

*  Cap.  36,  de  Jurej.  (ii.  24).  "  Schmalzg.,  1.  c  ,  n.  31. 

*  L.  2  ff.  de  Jurejur.  (xii.  2),  Soglia,  ed.  Vecch.,  vol.  ii.,  p.  298. 

*  Reiff.,  1.  c,  n.  139;  Schmalzg.,  1.  c,  n.  40.  *  Schmalzg.,  1.  c. 


Of  Judicial  Proofs.  121 

tendered  by  the  judge  ?  As  a  rule,  in  all  causes  whatever 
which  are  not  specially  excepted.  Now  what  causes  are 
excepted?  Chiefly  the  following:  i.  All  criminal  causes 
when  tried  criminally,  not  merely  civilly.  The  oath  may, 
however,  be  tendered  in  these  causes  to  the  accused  for  the 
purpose  of  establishing  his  innocence,  though  not  to  the 
plaintiff  or  prosecuting  party  in  support  of  the  charges,  or 
as  a  means  of  completing  his  proofs  otherwise  incomplete. 
The  reason  of  the  latter  conclusion  is  that  in  criminal  causes, 
as  we  have  repeatedly  said,  the  prosecuting  party  must  sus- 
tain his  charges  fully  and  completely ;  in  other  words,  the 
proofs  against  the  accused  must  be  of  the  fullest,  clearest,  and 
most  convincing  kind,  so  as  to  leave  no  doubt  of  the  guilt.' 
Now  this  cannot  be  said  to  be  the  case  with  imperfect  proofs 
even  when  supplemented  by  the  oath."  We  said  :  The  oath 
may,  however,  .  .  .  be  tendered  to  the  accused  for  the  purpose  of 
establishing  his  innocence.  This  holds,  of  course,  only  when  the 
charges  against  him  have  been  already  imperfectly  proven. 
For  where  they  have  not  been  sustained  at  least  imperfectly, 
or  to  some  extent,  the  accused,  even  though  he  has  not  3'et 
said  a  word  in  his  defence,  cannot  be  compelled  to  purge  him- 
self from  the  charges  by  an  oath,  but  is  simply  to  be  absolved 
or  declared  not  guilty.^ 

892.  2.  All  causes  imperilling  the  reputation  of  a  party 
[causae  famosae) ;  in  other  words,  those  causes  where  a  per- 
son who  is  condemned  becomes  infamous — v.g.,  causes  of 
theft,  usury,  etc.  However,  in  these  causes,  as  in  criminal 
causes,  the  oath  can  be  tendered  to  the  defendant  to  purge 
himself  from  suspicion,  but  not  to  the  plaintiff  in  completion 
or  supplement  of  his  imperfect  proofs."  3.  Civil  causes  of  a 
very  grave  nature.  For  they  are,  as  we  have  seen,  placed 
on  the  same  footing  with  criminal  causes. 

'  L.  fin.,  C.  de  Probat.  '  Schmalzg.,  1.  c,  n.  47. 

^  Cap.  36,  de  Jurej. ;  ib.  Glossa,  v.  probatione. 
*  L.  6  ff .  de  His  qui  not.  (iii.  2). 


122  '         Of  Judicial  Proofs. 

893.  4.  Matrimonial  causes,  wliere  there  is  question  of 
dissolving  or  sustaining  a  marriage  already  contracted. 
These  causes  may  be  said  to  come  under  the  foregoing  head, 
being  civil  causes  of  a  very  grave  character.  When,  how- 
ever, there  is  question  of  a  marriage  about  to  be  contracted, 
the  oath  can  be  tendered  to  a  person  bearing  a  good  name, 
who  has  imperfectly  proven  the  existence  of  an  impediment.' 

894.  The  chief  effects  of  this  necessary  oath  are:  i.  The 
party  to  whom  it  is  tendered  by  the  judge  cannot  offer  it  to 
the  opponent  or  refuse  to  take  it  except  for  just  cause.  And 
if  he  refuses  without  just  cause  he  loses  the  case.*  2.  Once 
taken,  it  perfects  the  imperfect  proofs,  so  that  sentence  must 
be  pronounced  in  favor  of  the  one  who  took  it.  From  this 
sentence,  however,  it  is  allowed  to  appeal,  and  that,  in  case 
new  documents  are  discovered,  even  after  the  lapse  of  ten 
days." 

'  Ex  Cap.  34,  de  Jurejur.;  ib.  Glossa,  v.  absolulo;  Schmalzg.,  1.  c,  n.  51. 
*  Cap.  36,  de  Jurej. ;  ib.  Glossa,  v.  a  te;  L.  12,  C.  de  Rebus  cred.  (iv.  i). 
^  L.  31  ff.  de  Jurejur.  (xii.  2);  Schmalzg.,  1.  c,  n.  56. 


PART  II. 

OF  ECCLESIASTICAL  JUDICIAL    PROCEDURE, 
IN  PARTICULAR. 

895.  Under  this  heading  we  shall  speak,  i,  of  the  or- 
ganization or  personnel  of  the  episcopal  and  metropolitan 
courts  of  justice ;  2,  of  ecclesiastical  trials,  both  ordinary 
and  extraordinary,  in  criminal  causes  ;  3,  of  ecclesiastical 
trials  in  civil  causes. 

CHAPTER   I. 

ORGANIZATION   OF   THE    BISHOP'S   COURT   OR    TRIBUNAL   FOR 
THE   EXERCISE   OF   JUDICIAL   POWER,  ALSO   IN  THE   U.  S. 

{De  Curia  Episcopali.) 

896.  Where  the  common  law  of  the  Church  obtains,  the 
bishop's  court  or  judicial  tribunal  is  composed,  i,  of  the 
bishop  or  his  substitute,  the  vicar-general,  as  judge  ;  2,  fre- 
quently, also,  of  assessors  and  auditors,  who  act  as  counsel  to 
the  judge  ;  3,  of  a  fiscal  promoter  or  prosecuting  advocate ; 
4,  of  a  notary  or  chancellor,  or  clerk ;  5,  of  a  messenger,  who 
delivers  the  citations  or  other  orders  of  the  court.  We 
shall  briefly  describe  the  rights  and  duties  of  each  of  these 
officials. 

Art.  I. 

Of  the  Judge. 

897.  We  have  already  spoken  at  sufficient  length  of  the 
ecclesiastical  judge.'     We  shall  here  add  but  a  few  remarks. 

>  Supra,  n,  711  sq. 


1 24  Organization  of  the  Bishops  Court  or  Tribunal 

The  bishop  is  the  ordinary  judge  of  the  first  instance,  for  his 
diocese.  Hence  his  judicial  tribunal  constitutes  the  court 
of  the  first  instance,  for  all  ecclesiastical  causes  whatever,  of 
his  diocese.  In  other  words,  all  causes  belonging  to  tl^e 
ecclesiastical  forum  must,  before  being  appealed  to  the 
higher  ecclesiastical  judge,  be  first  tried,  or  taken  cognizance 
of,  and  decided  by  the  ordinary  of  the  diocese,  or  his  repre- 
sentative.' 

898.  From  this  rule,  however,  the  following  cases  are 
excepted:  i.  Where  canon  law  expressly  directs  that  the 
matter  shall  be  tried  before  the  Holy  See ;  2.  Where  the 
Pope,  in  view  of  peculiar  circumstances,  deems  it  proper  to 
reserve  the  hearing  or  decision  of  the  cause  to  the  Holy  See. 
In  this  case,  however,  a  special  rescript,  signed  by  the 
Holy  Father  himself,  is  necessary."  3.  Where  the  ordinary 
has  not  terminated  the  cause  within  two  years,  at  the  latest, 
from  the  time  the  action  was  instituted  or  the  proceedings 
begun.  4.  Where  both  the  ordinary  and  the  contending 
parties  agree  to  have  the  case  tried  directly  before  the  Holy 
See.' 

899.  The  bishop,  being  the  ordinary  judge  of  his  diocese, 
can  adjudicate  causes — i.e.,  preside  at  trials  or  the  hearing 
of  causes,  and  pass  sentence — either  in  person  or  through 
others.  As  a  rule,  bishops  in  Catholic  countries  try  or  hear 
causes,  not  in  person,  but  through  their  vicars-general.  It 
may  therefore  be  said  that  in  these  countries  vicars-gene- 
ral, generally  speaking,  preside  at  all  ecclesiastical  trials, 
in  the  bishop's  stead.  Of  course  the  bishop  is  not  restricted 
to  allowing  the  vicar-general  to  act  for  him  in  these  matters ; 
he  may  also  delegate  or  authorize  others  to  sit  as  judges  in 
his  stead,  in  particular  cases,  or  even  in  a  certain  kind  of 

'  Cone.  Trid.,  sess.  24,  C.  20,  de  Ref. 
'  lb. ;  cf.  Molitor,  Kanonisches  Gerichtsverfahren,  p.  212. 
'  S.  C.  C,  4  Aug.,  1691,  ap.  Richter,  Can.  et  Decret.,  p.  319;  Phillips,  Com- 
pend.,  ^  179. 


for  the  Exercise  of  Judicial  Power,  also  in  the  U.  S.  125 

causes — v.g.,  in  all  criminal  causes.'  The  latter,  however, 
would  be  only  delegates,  and  consequently  appeals  would 
lie  from  them  to  the  bishop.  The  vicar-general,  on  the 
other  hand,  is  a  "judex  ordinarius,"  and  forms  one  and  the 
same  court  with  the  bishop,  and  therefore  appeals  from  him 
must  be  made,  not  to  the  bishop,  but  the  higher  superior." 
In  criminal  and  disciplinary  causes  of  ecclesiastics,  in  the 
United  States,  the  bishop's  part,  rights  and  duties,  so  far  as 
the  hearing  or  trial  of  the  cause  is  concerned,  have  been  as- 
signed by  the  Holy  See,  in  its  Instruction  of  July  20,  1878, 
to  the  Commission  of  Investigation,  to  be  established  in  each 
diocese. 

Art.   II. 

Auditors  of  the  Bishop's  Court — Resemblance  between  them  and 
our  Commissions  of  Investigation. 

900.  There  are  two  kinds  of  auditors :  some  are  judges 
in  the  proper  sense  of  the  term — namely,  the  auditor  of 
the  apostolic  chamber  {auditor  camerae  apostolicae),  and  the 
auditors  of  the  Rota  {auditores  Rotae) ;  others — namely,  those 
of  episcopal  and  archiepiscopal  courts — are  not  judges,  but 
merely  officials  or  persons  to  whom  a  cause  is  either  in 
whole  or  in  part  committed,  in  order  that,  having  dili- 
gently examined  its  merits,  they  shall  report  the  entire  affair 
to  the  judge  for  his  decision.'  These  auditors  have  indeed 
jurisdiction  so  far  as  the  hearing  or  taking  cognizance  of  the 
cause  is  concerned,  so  that  they  can  summon  the  parties, 
admit  witnesses,  proofs,  etc.  but  they  have  no  jurisdiction 
so  far  as  the  final  sentence  is  concerned,  and  consequently 
they  cannot  pronounce  definitive  sentence,  unless  they  have 
been  especially  empowered  to  do  so.*     Hence  they  may  be 

1  Molitor,  1.  c,  p.  268;  Bouix,  de  Jud.,  vol.  i.,  p.  469.     '  Molitor,  1.  c,  p.  269. 
'^  Ex  Cap.  27,  de  Off.  jud.  del.  (i.  29);   Craiss.,  n.  5758. 
*  Schmalzg.,  1.  2,  t.  i,  n.  15. 


126   Orgamzatzoji  of  the  Bishop's  Court  or  Tribiinal 

compared  to  the  referees  or  masters  in  chancery  of  the  secu- 
lar courts  of  the  United  States. 

901.  It  will  also  be  observed  that  there  is  a  striking-  re- 
semblance between  these  auditors  and  our  Commissions  of 
Investigation,  who,  while  charged  with  the  entire  and  exclu- 
sive hearing  of  the  cause,  cannot  pronounce  final  sentence, 
but  must  simply  report  the  whole  case,  together  with  their 
verdict,  to  the  bishop,  whose  sole  privilege  it  is  to  pass  final 
sentence,  and  that  either  in  conformity  with  or  opposition  to 
the  advice  or  report  of  the  Commission. 

902.  According  to  the  common  law  of  the  Church,  the 
judge  or  bishop  is  not  obliged  to  appoint  any  auditors  for 
his  court.  There  are,  however,  cases  where  it  may  be  expe- 
dient for  the  bishop  to  appoint  an  auditor  for  his  vicar-gen- 
eral (where  the  latter  sits  in  court,  in  the  bishop's  stead,  as  is 
the  case  nearly  all  over  Europe) — v.g.,  (a)  where  the  number 
of  causes  is  too  great  to  be  expedited  in  proper  time  by  the 
vicar-general  alone  ;  (6)  where  the  vicar-general  is  not  versed 
in  canon  law.  The  jurisdiction  of  these  auditors  is  delegated, 
not  ordinary.* 

903.  Is  it  allowed  to  appeal  from  an  auditor?  It  is, 
I,  when  he  acts  as  a  judge  proper  ;  2,  when  he  is  justly 
suspected  by  the  parties — that  is,  when  there  are  good  reasons 
for  believing  that  he  is  biassed  against  the  parties."  That 
this  holds  also  of  Commissions  of  Investigation  in  the  United 
States,  we  shall  show  a  httle  farther  on. 

Art.   III. 

Assessors  of  the  Bishofs  Court — Are  Commissions  of  Investiga- 
tion in  the  United  States  Assessors  of  the  Bishop's  Court  f 
In  what  sense  ? 

904.  Assessors  {assessor es^  are  persons  appointed  to  assist 
the  judge  t>y  their  advice,  in  the  hearing  of  causes  and  the 

•  Cap.  27,  de  Ofif.  jud.  del.  (i.  29).  '  Bouix,  de  Jud.,  vol.  i.,  p.  461. 


for  the  Exercise  of  Judicial  Power,  also  in  the  U.  S.  127 

conduct  of  judicial  proceedings.  Hence  they  are  also  called 
counsellors  {consiliarii)  of  the  judge.'  By  the  common  law 
of  the  Church,  assessors  have  no  jurisdiction.  For  their 
office  consists  simply  in  giving  advice  to  the  judge,  who  is 
not  bound  to  follow  it.''  We  say,  by  the  cotnmon  law  of  the 
Church ;  for,  by  particular  law,  they  may  possess  jurisdic- 
tion. Thus,  it  is  certain  that  where,  as  we  have  seen,  vicars- 
general  ordinarily  preside  at  trials  in  place  of  the  bishop,  the 
latter  may  for  the  hearing  of  certain  kinds  of  causes — v.g., 
criminal  causes — associate  with  his  vicar-general  one  or  more 
assessors,  whose  advice  he  is  bound  to  follow.  The  assessors 
in  this  case  would  of  course  be  associate  judges,  and  not 
mere  advisers.' 

905.  Who  can  appoint  assessors?  As  a  rule,  any  judge 
can  appoint  assessors  for  himself,  whose  right  and  duty  it 
will  be  to  sit  by  the  judge  when  holding  court,  participate 
in  all  the  proceedings,  advising  the  judge,  etc.  The  reason 
is,  that  no  one  is  forbidden  to  take  counsel  of  others.  Hence, 
too,  the  vicar-general,  in  places  where  he  acts  as  judge  for 
the  bishop,  can  select  assessors  for  himself,  unless  the  bishop 
has  reserved  the  appointment  to  himself,'' 

906.  Can  assessors  be  challenged  as  suspected  ?  They 
can,  and  if  the  judge  does  not  admit  the  challenge,  he  can 
himself  be  objected  to  as  suspected.  The  reason  is,  that  by 
giving  advice  to  the  judge  they  naturally  influence  his  de- 
cision, and  thus  become  mstrumental  in  inflicting  a  grievance 
upon  the  party.  Hence  the  party  who  has  just  cause  for 
suspecting  the  assessor  can  object  to  his  acting  as  assessor." 

907.  From  these  principles  it  will  be  seen  that  members 
of  Commissions  of  Investigation  in  the  United  States  (the 
same  holds  true  of  those  in  England)  may  be  challenged 
when  there  is  just  cause  for  suspecting,  v.g.,  that  they  are 

'  L.  5  ff.  de  Offic.  adsess.  (i.  22);  L.  i,  C.  h.  t.  (i.  51). 

s  L.  I  ff.  h.  t. ;  L.  I,  C.  h.  t.  ^  Bouix,  1.  c,  p.  467. 

*  Bouix,  1.  c,  p.  468.  *  Bouix,  1.  c,  p  469. 


128   Organization  of  the  Bishop's  Court  or  Tribunal 

biased  against  the  parties,  or  otherwise  unfavorably  disposed 
towards  them.  These  Commissions  are,  in  fact,  established 
by  the  Holy  See  as  the  official  advisory  boards  of  bishops  in 
criminal  and  disciplinary  causes  of  ecclesiastics.'  Hence  the 
members  of  these  bodies  or  judicial  committees  are  expressly 
called  assessors  of  the  bishop."  Their  advice  or  report,  sub- 
mitted to  the  bishop  in  the  manner  laid  down  by  the  Instruc- 
tion of  the  Propaganda,*  forms  part  of  the  authentic  records 
of  the  cause  tried,  and  therefore  has  to  be  always  inserted 
among  the  acts,  and  must  have,  as  it  is  intended  by  the  Holy 
See  that  it  should  have,  the  greatest  weight  both  with  the 
bishop  and,  in  case  of  appeal,  with  the  judge  of  appeal.  If, 
therefore,  it  is  allowed  to  challenge  as  suspected  assessors 
who  have  no  jurisdiction  whatever,  it  seems  certain  that, 
a  fortiori,  members  of  our  Commissions  of  Investigation  who 
are  clothed  with  jurisdiction  for  the  hearing  of  the  cause 
can  be  excepted  to  by  parties  who  have  just  reasons  for  sus- 
pecting them.  These  grounds,  however,  of  suspicion  are 
not  presumed,  but  must  be  proved,  as  we  shall  show. 

Art.  IV. 

Collegiate  form  of  the  Bishop's  Court —  The  Bishop's  Court  in  the 
United  States,  as  established  by  the  S.  C  de  Prop.  Fide  on 
July  20,  1878. 

908.  Can  the  bishop,  by  virtue  of  the  general  law  of  the 
Church,  make  his  court  or  judicial  tribunal  consist  of  a  col- 
lege of  judges, — that  is,  of  a  number  of  judges, — who  shall 
be  bound  to  proceed  collectively  and  decide  the  case  by  a 
majority  of  votes  ?  In  other  words,  can  he  enact,  for  in- 
stance, that  his  court  shall  consist  of  his  vicar-general  and 
one  or  more  assessors  or  associate  judges,  who  shall,  like  the 

'  Instr.  S.  C.  de  Prop.  Fid.,  20  Julii,  1878,  §  Commissionis  ita. 

*  S.  C.  de  P.  F.,  Ad  Dubia,  §  Ex  quibus  patet.  *  July  20,  1878,  §  9,  Quibus. 


for  the  Exercise  of  Judicial  Power,  also  in  the  U.S.  129 

vicar-general  himself,  have  a  decisive,  not  merely  a  consulta- 
tive vote  ?  He  certainly  can,  as  we  have  already  said.'  For 
as  the  bishop  has  the  power,  if  he  wishes,  to  preside  at  the 
trial  and  pass  sentence  in  person,  associate  with  himself,  and 
that  in  all  causes  whatever,  associate  judges,  having  a  de- 
cisive, not  merely  a  consultative,  vote,  so  he  can  evidently 
appoint  such  associate  judges  for  his  vicar-general,^  or  other 
judge  appointed  by  him,'  In  reality,  the  law  of  the  Church 
not  only  permits  but  greatly  favors  such  colleges  or  bodies 
of  judges,  on  the  ground  that  conclusions  or  decisions  ar- 
rived at  by  several  persons  are  of  more  weight  and  sound- 
ness than  those  reached  by  a  single  individual/ 

909.  As  a  matter  of  fact,  the  Holy  See  has  in  recent 
times  set  a  praiseworthy  example  in  this  respect.  For  in 
1 83 1  it  enacted  that  in  all  the  dioceses  of  the  Pontifical 
States  the  court  of  the  bishop  for  the  adjudication  of  crimi- 
nal causes  of  ecclesiastics  should  consist  of  the  ordinary  and 
four  other  judges.  In  Rome  the  court  of  the  vicariate  or 
cardinal  vicar-general  of  the  Pope  for  the  diocese  of  Rome 
is  made  up  of  the  cardinal-vicar  and  four  other  prelates.^ 

910.  Present  organization  of  tJie  bishop's  court  in  the  United 
States. — We  have,  in  the  above  lines,  described  the  collegiate 
form  of  the  bishop's  court  as  authorized  by  the  common  law 
of  the  Church.  We  now  come  to  our  own  ecclesiastical 
courts.  They,  too,  have  a  collegiate  form  for  the  hearing  of 
the  cause,  exclusive  of  final  sentence.  But  this  collegiate 
organization  differs  in  certain  respects  from  that  pointed  out 
above.  We  shall,  therefore,  briefly  note  these  differences. 
The  Second  Plenary  Council  of  Baltimore^  enacted  that  the 
bishop's  court  in  the  United  States  for  the  adjudication  of 
criminal  causes  should  consist  of  the  bishop  or  his  vicar- 
general,  and  two  priests  selected  by  him.    The  S.  C.  de  Prop- 

'  Supra,  n.  904.  *  At  least,  for  the  hearing  of  a  certain  class  of  causes. 

*  Molitor,  1.  c,  p.  269.  ^  Cap.  21,  de  Off.  jud.  del.  (i.  29). 

^  Bizzarri,  Collectanea,  pp.  192,  193;  Bouix,  1.  c,  p.  470.  *  N.  77. 


1 30  Organization  of  the  Bishops  Court  or  Tribunal 

Uganda,  in  its  admirable  Instruction  of  July  20,  1878,  changed 
the  Baltimore  decree  so  far  as  the  organization  and  mode 
of  procedure  of  the  bishop's  court  are  concerned,  and  or- 
dained that  the  bishop's  court  in  the  United  States  for  the 
hearing  of  criminal  and  disciplinary  causes  of  ecclesiastics 
should,  as  we  have  seen,'  consist  of  five,  or,  where  so  many 
cannot  be  had,  at  least  of  three  priests,  who  shall  constitute 
a  Commission  of  Investigation.  They  are  appointed  by  the 
bishop  1)1  and  with  the  advice  of  the  synod ;  that  is  to  say,  the 
bishop,  in  appointing  them,  is  indeed  bound,  and  that  on 
pain  of  nullity  of  the  appointment,  to  consult  the  clergy 
assembled  in  synod,  but  he  is  not  bound  to  follow  this 
advice.  The  members  once  appointed  hold  office  till  the 
next  synod,  when  they  may  be  confirmed  or  others  appointed 
in  their  stead."  If  a  vacancy  should  occur  in  the  interim,  the 
bishop  can  fill  it  without  the  advice  of  the  diocesan  synod, 
though  it  is  becoming  that  he  should  consult  the  other  mem- 
bers of  the  Commission."  To  this  Commission  belongs 
entirely  and  exclusively  the  trial  or  hearing  of  the  cause 
which  falls  under  their  jurisdiction  or  competence.  The 
mode  in  which  the  trial  or  judicial  proceedings  are  to  be 
conducted  before  these  Commissions  is  outlined  in  the 
Instruction  of  the  Propaganda  establishing  these  judicial 
colleges  or  councils.  After  the  members  of  the  latter  bodies 
have  fully  and  thoroughly  investigated  or  tried  the  cause  in 
the  manner  prescribed  by  said  Instruction,  and  obtained  all 
possible  light  on  the  subject,  and  received  all  the  available 
testimony,  they  enter  into  consultation  in  order  to  discuss 
the  case  and  exchange  views  with  each  other.  If  upon  con- 
sultation it  is  found  that  a  majority  of  the  members  beheve 
the  facts  to  be  sufficiently  proven,  each  member  writes  out 
his  opinion  in  extenso,  together  with  the  reasons  upon  which 

'  Supra,  n.  648.  '  Supra,  n.  407. 

Mnstr.  S.  C.  de  Prop.  Fide,  20  Julii,  1878,  §  Electi  Consiliarii;  S.  C.  de  P. 
F.,  Ad  Dubia,  §  2  Electio  Consillariorium;  ib.,  §  Extra  synodum. 


for  the  Exercise  of  Judicial  Power,  also  in  the  U.S.  131 

it  is  based."  These  opinions,  together  with  all  the  other 
records  of  the  case,  are  then  delivered  to  the  bishop,  to 
enable  him  to  pass  final  sentence.  Consequently  the  bishop 
remains  the  sole  judge  in  the  proper  sense  of  the  term,  the 
final  decision  of  the  cause  being  reserved  exclusively  to  him. 

911.  The  Commissioners  may  be  said  to  be  both  auditors 
and  assessors  of  the  bishop.  Auditors,  because  they  not 
merely  advise  the  bishop  or  the  judge,  but  are  entrusted 
with  the  entire  conduct  of  the  trial  or  hearing  of  the  cause, 
and  have  consequently  jurisdiction  for  the  hearing  of  the 
cause.  Assessors,  because  their  opinion  or  verdict,  as  sub- 
mitted to  the  bishop,  has  not  the  force  of  a  decision  of  the 
cause,  but  merely  of  advice  to  the  bishop.* 

Art.  V. 
Diocesan  Promoter  and  Advocate  {Promotor  fiscalis). 

912.  Another  official  usually  attached  to  the  bishop's 
court  is  called  the  promoter  or  procurator  of  the  fisc  {pro- 
motor,  or  procurator  or  advocatiis  fiscalis).  This  official  is 
called  in  our  secular  courts  prosecuting  attorney,  city 
counsel,  district  and  state  attorney,  attorney-general.  By 
the  ecclesiastical  fisc  {fiscus  ecclesiae)  we  here  mean  the 
property,  things,  and  rights  relating  to  the  public  good  and 
interest  of  the  Church.  As  the  secular  fisc  is  a  secular  cor- 
poration, so  the  ecclesiastical  fisc — v.g.,  the  diocese  as  such — 
is  an  ecclesiastical  corporation  or  moral  person,  having,  in 
general,  all  the  rights  of  physical  persons.  Hence,  we  say, 
the  ecclesiastical  fisc  or  the  diocese  enters  into  engagements, 
makes  contracts,  sells,  buys,  pleads  and  is  impleaded,  etc. 
But  it  is  manifest  that  a  moral  person,  or  to  speak  more  pre- 
cisely, an  ecclesiastical  juridical  person,  cannot  act  of  itself, 

'  Instr.  cit.,  §  9,  Quibus  omnibus. 

'  S.  C.  de  P.  F.,  Ad  Dubia,  §  3  Votum  a  Consilio;  ib.,  §  Ex  quibus. 


132   Organization  of  the  Bishop's  Court  or  Tribunal 

and  is  therefore  unable  personally  to  institute  judicial  pro- 
ceedings or  act  as  plaintiff  or  defendant  to  defend  and  secure 
its  rights.  Hence  it  is  necessary  that  somebody  be  ap- 
pointed whose  duty  it  shall  be  to  act  for  the  fisc  or  diocese 
in  judicial  proceedings.  The  person  appointed  to  do  so  is 
called  the  fiscal,  or,  in  the  case  of  a  diocese,  diocesan  pro- 
moter. 

913.  Hence  a  promoter  or  prosecuting  attorney  of  the 
bishop's  court  is  an  official  lawfully  appointed  to  guard  and 
promote  the  rights  of  the  diocese  or  diocesan  fisc,  and  act 
as  plaintiff  or  defendant  in  its  stead.'  As  will  be  seen  from 
this  definition,  the  duties  of  the  diocesan  attorney  or  pro- 
moter consist  chiefly,  i,  in  prosecuting  criminal  offences 
before  the  ecclesiastical  tribunal,  or  bishop's  court  (in  the 
United  States,  before  Commissions  of  Investigation);  for  the 
good  of  the  Church  and  of  the  diocese  evidently  requires 
that  crimes  shall  be  punished  ;  2,  in  acting  as  the  representa- 
tive of  the  diocese,  and  therefore  as  plaintiff  or  defendant  in 
judicial  proceedings,  where  the  rights,  prerogatives,  property, 
etc.,  of  the  diocese  are  involved.''  Consequently,  he  is  not  only 
the  prosecuting  attorney,  but  in  general  the  procurator  or 
attorney  for  the  diocese  in  all  judicial  proceedings  or  liti- 
gious matters. 

914.  By  whom  and  how  is  the  diocesan  promoter  ap- 
pointed ?  He  can  certainly  be  appointed  by  the  bishop. 
But,  in  case  no  appointment  has  been  made  by  the  bishop, 
or  the  appointee  of  the  bishop  is  hindered  from  discharging 
his  office,  it  would  seem  that  the  vicar-generai  (when  acting 
as  judge),  or  other  judge  delegated  by  the  bishop,  can  ap- 
point a  promoter.  The  reason  is,  that,  as  a  rule,  the  judge 
should  provide  a  procurator  or  attorney  or  advocate  for  a 
party  that  is  in  need  of  one,  and  cannot  himself  procure 
one.      Now,  this  is  plainly  the  case  with  the  ecclesiastical 

'  Leur.,  For.  Eccl.,  1.  3,  t.  21,  q.  460,  n.  i. 
'  Bouix,  1.  c,  p.  471;  Craiss.,  n.  5770. 


for  the  Exercise  of  Judicial  Power,  also  in  the  U.S.  133 

fisc  or  diocese.  The  promoter  is  removable  ad  nutum. 
When  about  to  enter  upon  his  office,  he  must  take  an  oath 
to  perform  his  duties  faithfully.' 

915.  Q.  Is  it  obligatory,  by  the  common  law  of  the 
Church,  to  appoint  a  diocesan  attorney  or  fiscal  promoter 
for  the  bishop's  court  ? 

A.  It  would  seem  so.  For  the  Roman  law  prescribes 
that  in  all  proceedings  against  a  defendant  the  fiscal  pro- 
moter shall  be  cited,  and  that  on  pain  of  nullity  of  sentence 
which  may  be  passed  on  the  defendant."  The  Roman  law, 
therefore,  takes  it  for  granted  that  these  attorneys  must  be 
appointed.  As  the  sacred  canons  are  silent  on  this  head, 
and  do  not  enact  the  contrary,  this  Roman  or  civil  law  must 
be  regarded  as  adopted  by  the  canon  law.  For  it  is  a  rule 
of  canon  law,  that  where  the  latter  is  silent,  or  does  not 
expressly  enjoin  the  contrary,  the  Roman  or  civil  law  holds 
also  in  the  eccclesiastical  forum.  Hence  Pope  Lucius  III. 
says  :  "  Sicut  leges  non  dedignantur  sacros  canones  imitari, 
ita  et  sacrorum  statuta  canonum  principum  constitutionibus 
adjuvantur."  ^ 

916.  Apart  from  this  law,  it  is  not  absolutely  necessary 
that  a  promoter  should  be  appointed.*  We  say,  absolutely; 
for,  without  this  official,  it  were  evidently  very  difficult  to 
observe  the  prescribed  and  customary  formalities  which 
must,  as  a  rule,  be  observed  in  the  trial  or  hearing  of  crimi- 
nal causes."  Of  course,  where  the  bishop  is  allowed  to  pro- 
ceed extrajudicially  or  ex  informata  co7tscientia,  no  diocesan 
attorney  is  needed,  as  no  judicial  formalities  need  be  ob- 
served. Sometimes  the  number  of  causes  is  so  great,  that 
the  diocesan  promoter  is  unable  to  attend  to  them  alone  and 
unaided.  In  this  case  he  can  associate  an  ecclesiastical  ad- 
vocate with  himself,  who  is  on   that  account  called    fiscal 

'  L.  5,  C.  (x.  10).  »  Ex  1.  I.  C.  de  Sent.  adv.  fisc.  (x.  9);  Bouix,  1.  c,  p.  475. 

^  Cap.  I  (v.  32);  Bouix,  1.  c,  p.  19. 

■»  Cf.  Molitor,  1.  c,  p.  234.  '  Craiss.,  n.  5771. 


1 34   Organization  of  the  Bishop's  Court  or  Tribunal 

advocate  [advocatiis  fiscalis).  It  depends  upon  the  bishop, 
however,  whether  the  promoter  can  select  him  at  his  discre- 
tion, or  only  from  among  the  number  of  those  approved  for 
this  office.' 

Art.  VI. 

Diocesan  Promoter  in  the  United  States,  under  the  Instruction 
of  the  S.  C.  de  P.  F.,  July  20,  1878. 

917.  This  Instruction  of  the  Propaganda,  which  pre- 
scribes the  mode  of  procedure  in  criminal  and  disciplinary 
causes  of  ecclesiastics  to  be  followed  by  the  ecclesiastical 
courts  of  the  United  States,  requires  that  when  a  matter  or 
cause  has  been  or  is  to  be  brought  before  the  Commission 
of  Investigation,  the  bishop  shall  depute  his  vicar-general, 
or  some  other  priest,  to  draw  up  a  full  statement  of  the  case, 
supported  by  proofs,  against  the  defendant  or  accused,  and 
read  it  before  the  Commission,  and  be  subject  to  cross-exam- 
ination by  the  latter  body.  The  words  of  the  Instruction 
are :  "  Re  ad  Consilium  delata,  episcopus  vicario  suo 
generali,  vel  alii  sacerdoti  ad  hoc  ab  ipso  deputato  commit- 
tat,  ut  relationem  causae  in  scriptis  conficiat,  cum  exposi- 
tione  investigationis  eo  usque  peractae,  et  circumstantiarum 
quae  causam  vel  ejusdem  demonstrationem  specialiter  affi- 
ciant." '  And  again :  ''  Relatio  causae  legatur  coram  Con- 
silio  ab  episcopi  officiali,  qui  etiam  ad  interpellationes  respon- 
debit  a  praeside  vel  ab  aliis  Consiliariis  per  praesidem 
faciendas  ad  uberiorem  rei  notitiam  assequendam."  '  It  will 
therefore  be  seen  that  this  official  of  the  bishop  takes  the 
place  of  the  diocesan  promoter  spoken  of  in  the  preceding 
article.  His  status,  therefore,  before  the  Commission  of  In- 
vestigation is  not  that  of  an  advocate,  or  even  judge,  but 
simply  of  plaintiff  or  defendant  for  the  diocese.  He  is 
therefore,  placed  on  the  same  footing  with  the  accused  or 
defendant,  so  far  as  judicial  proceedings  are  concerned. 

'  Bouix,  1.  c,  p.  476.  *  Instr.  clt.,  §  2,  Re  ad.         '  lb.,  §  6,  Relatio  causae. 


for  the  Exercise  of  Judicial  Power,  also  in  the  U.  S.  135 


Art.  VII. 

Notaries  or  Chancellors — Secretary  of  Commissions  of  Investi- 
gation in  the  Ufiited  States. 

{De  Notariis  et  Cancellariis). 

918.  A  notary  {notarius,  acinar  ins,  tabellio,  protocollista, 
eancellarius)  is  a  person  appointed  by  public  authority  in 
order  that  acts  written  by  him  may  have  public  authority, 
or  be  worthy  of  belief.'  Notaries  are  either  ecclesiastical  or 
secular,  according  as  they  are  appointed  by  the  ecclesiastical 
or  the  secular  power.  Ecclesiastical  notaries  are  again 
divided  into  apostolic  {notarii  apostolici) — that  is,  those  ap- 
pointed by  the  Holy  See — and  episcopal — or  those  named 
by  bishops.  Apostolic  notaries  are  subdivided  into  notaries 
simply,  and  prothonotaries.'' 

919.  Can  ecclesiastics  and  regulars  be  appointed  notaries? 
By  the  written  common  law  of  the  Church,  all  secular 
ecclesiastics  who  are  in  sacred  orders^ — nay,  according  to 
the  more  probable  opinion,  even  those  who  are  merely  in 
minor  orders,  and  without  a  benefice — and  all  regulars  are 
forbidden  to  act  as  notaries,  not  only  in  secular  courts  and 
causes,  but  also,  according  to  the  more  probable  opinion,  in 
ecclesiastical  courts  and  causes,"  except  {a)  in  causes  of  faith,* 
{b)  and  where  the  notary  is  appointed  by  the  Holy  See,  such 
appointment  being  equivalent  to  a  derogation  of  the  above 
written  law  of  the  Church.*  We  say,  by  the  written  common 
law  ;  for  the  general  practice  or  custom  makes  it  lawful,  also 
at  present,  to  appoint  ecclesiastics,  even  though  in  sacred 
orders,  notaries,  though  only  for  acts  of  the  ecclesiastical  au- 
thority, and  not  for  secular  courts  or  matters.  In  fact,  not 
only  in  the  United  States,  but  all  over  the  world,  the  chan- 

'  Bouix,  1.  c,  p.  479.  "^  Cf.  supra,  n.  526. 

'  Cap.  8,  Ne  cleric,  vel  monach.  (iii.  50).  "*  lb.  Glossa,  v.  clericis  in  sacris. 

^  Cap.  II,  de  Haeret.  in  6°  (v.  2).  ®  Bouix,  I.  c,  p.  482-487. 


o 


6  Organization  of  the  Bishop's  Court  or  Tribunal 


cellors  of  bishops  are  ecclesiastics,  nay,  usually  priests.  In 
truth,  considering  the  present  state  of  society,  it  seems  far 
more  becoming  that  ecclesiastics,  not  laymen,  should  be 
appointed  notaries  for  ecclesiastical  matters  and  in  eccle- 
siastical courts.' 

920.  By  whom  are  notaries  for  ecclesiastical  causes  to  be 
appointed  ?  Strictly  speaking,  and  ex  jure  propria,  only  by 
the  Pope.  For  the  Pope  alone  can  enact  something  which 
is  altogether  contrary  to  the  general  law  of  the  Church. 
Now,  the  enactment  that  the  writing  of  one  man — the 
notary — shall  of  itself  constitute  full  and  complete  evi- 
dence, is  certainly  wholly  opposed  to  all  law."  However,  by 
virtue  of  custom,  based  upon  the  consent,  at  least  tacit,  of  the 
Sovereign  Pontiff,  notaries  can  be  appointed  also  by  bishops 
— nay,  even  by  generals  and  provincials  of  religious  orders  for 
the  criminal  causes  of  religious  subject  to  them.^  Observe, 
what  has  been  just  said  with  regard  to  the  appointment  of 
notaries  {iiotarii)  applies  also  to  chancellors  {cancellarii)  or 
secretaries  {actuarii).  For  the  writings  or  instruments 
signed  or  attested  by  these  chancellors  or  secretaries  have 
the  same  force  and  authority  as  those  of  notaries  proper." 

921.  Can  lay  notaries  act  validly  in  ecclesiastical  and 
spiritual  causes  ?  We  distinguish  lay  notaries  who  are 
appointed,  or  at  least  admitted,  as  notaries  in  the  ecclesias- 
tical courts,  and  for  spiritual  or  ecclesiastical  matters,  by  the 
ecclesiastical  authorities,  and  those  who  are  appointed  solely 
by  the  secular  power.  As  to  notaries  of  the  first  kind,  there 
can  be  no  difficulty.  For  it  is  certain  that  laymen  can  be, 
nay,  are  sometimes  laudably  appointed  notaries  by  the 
bishop  for  ecclesiastical  matters  and  his  ecclesiastical  court." 
In  regard  to  notaries  of  the  second  class,  it  seems,  consid- 
ering merely  the  rigor  of  the  law,  that  they  cannot  validly 
exercise  the  office  of  notary  in  ecclesiastical  causes  or  matters. 

'  lb.,  p.  493.         *  Bouix,  1.  c,  p.  497.         *  Ferraris,  v.  notarius,  n.  21. 
*  Bouix,  1.  c,  pp.  481,  500.  *  Bouix,  1.  c,  p.  493. 


for  the  Exercise  of  Judicial  Pozver,  also  in  the  U.  S.  137 

The  reason  is,  that  the  secular  power  has  no  jurisdiction 
over  such  causes  or  matters,  and  consequently  cannot  make 
a  law  whereby  instruments  made  by  notaries  created  solely 
by  itself  shall  have  full  authority  also  in  the  eyes  of  eccle- 
siastical judges.  Such  a  law  would  be  an  act  of  ecclesiastical 
jurisdiction,  and  therefore  a  usurpation  on  the  part  of  the 
secular  ruler. 

922.  We  said,  first,  considering  merely  the  rigor  of  the  law  ; 
for,  as  a  rule,  these  notaries  may  at  least,  by  virtue  of  gen- 
eral custom,  act  validly  as  notaries,  also  in  the  ecclesiastical 
forum,  and  in  ecclesiastical  matters,  until  prohibited  by  the 
bishop  from'  doing  so.  This  seems  to  follow  manifestly  from 
the  following  decree  of  the  Council  of  Trent :  *  "  Whereas 
the  unskilfulness  of  notaries  causes  very  many  injuries,  .  .  . 
the  bishop  .  .  .  may  by  actual  examination  search  into  the 
competency  of  all  notaries,  even  though  created  by  apostolic, 
imperial,  or  royal  authority  ;  and  if  such  notaries  be  found 
incompetent,  ...  he  may  forbid  them  ...  to  exercise  that 
office  in  ecclesiastical  and  spiritual  affairs."  Here  the 
Council  of  Trent  plainly  takes  it  for  granted  that  notaries 
created  solely  by  the  secular  power  can  validly  exercise 
their  office  also  in  ecclesiastical  matters.  For  the  Council 
authorizes  bishops  to  forbid  them  to  act  as  notaries  in  eccle- 
siastical affairs  only  when  they  are  found  incompetent  or 
unworthy.*  We  said,  secondly,  as  a  rule ;  since  causes  of 
canonization  are  excepted.  For  these  latter  causes,  notaries 
created  by  the  Apostolic  See  are  absolutely  required. 

923.  It  happens  not  unfrequently  in  this  country,  that 
ecclesiastics  have  instruments  or  documents  relating  to 
ecclesiastical  causes  and  affairs  drawn  up,  or  certified  by  a 
notary  public  or  other  official  appointed  solely  by  the  civil 
power.  Here  it  is  to  be  observed  that,  where  this  is  done  for 
just  cause, — v.g.,  where  no  ecclesiastical  notary  is  at  hand  or 

^  Sess,  22,  c.  II,  de  Ref.  '  Bouix,  1.  c,  p.  504. 


138   Organization  of  the  Bishop's  Court  or  Tribunal 

accessible,— a  notary  public  who  is  a  Catholic  should  as  far 
as  possible  be  employed.  For  the  custom  above  mentioned, 
authorizing  lay  notaries  appointed  solely  by  the  civil  power 
to  act  as  notaries  also  in  ecclesiastical  matters,  seems  to 
have  had  reference  only  to  Catholic  notaries  appointed  by 
Catholic  princes  at  a  period  when  the  Church  and  state 
were  in  mutual  concord  and  harmony.'  Observe,  also,  that 
an  instrument  validly  drawn  up  by  a  notary  is  of  full 
authority — i.e.^  constitutes  of  itself  full  proof — not  only  in 
the  place  where  it  was  made,  but  everywhere." 

924.  Q.  Is  the  ecclesiastical  judge  bound  to  make  use 
of  a  notary,  chancellor,  or  secretary,  both  in  ordinary  or 
solemn,  and  in  extraordinar}^  or  summary,  trials  or  judicial 
proceedings  ? 

A.  He  is.  This  is  expressly  ordained  in  the  decretal 
Quoniam  issued  by  Pope  Innocent  III.,  in  the  General  Coun- 
cil of  the  Lateran,  held  in  121 5.  His  words  are:  "  Statuimus 
ut  tarn  in  ordinario  judicio,  quam  extraordinario,  judex 
semper  adhibeat  aut  publicam  (si  potest  habere)  personam, 
aut  duos  viros  idoneos,  qui  fideliter  universa  judicii  acta 
conscribant."  '  This  law  is  still  in  force,  having  never  been 
revoked.  Hence  a  secretary  or  notary,  or  where  he  cannot 
be  had,  two  trustworthy  persons,  must  intervene  at  all 
judicial  proceedings  or  investigations,  even  though  of  the 
simplest  kind,*  of  ecclesiastical  courts  or  tribunals,  and  con- 
sequently also  at  trials  or  proceedings  before  Commissions 
of  Investigation  in  the  United  States  and  England.  This 
holds  so  strictly,  that  the  records  or  minutes  or  acts  of  the 
proceedings  have  no  authority,  and  are  not  worthy  of  belief, 
even  though  they  are  signed  or  attested  by  the  judge,  un- 
less they  are  written  and  signed  by  a  secretary,  or,  in  his 
absence,  two  trustworthy  persons.      Thus  the   Cap.  Cum  a 


'  Cf.  Bouix,  1.  c,  p.  505.  '  lb.,  p.  508. 

3  Cap.  Quoniam  11,  de  Probat.  (ii.  19).  *  Miinchen,  1.  c,  vol.  i.,  pp.  65,  77. 


for  the  Exercise  of  Jitdkial  Pozuer,  also  in  the  U.  S.  139 

nobis  says  :  "  Districtius  inhibemus,  ne  unius  judicis,  quan- 
taecunque  fuerit  auctoritatis,  verbo  credatur."  ' 

925.  The  object  of  this  law,  therefore,  is  to  have  an 
authentic  and  reliable  record  of  what  has  taken  place,  and 
that  in  the  interest  of  all  the  parties  concerned — nameh', 
the  plaintiff,  defendant,  judge,  etc.  Hence  it  is  the  duty  of 
the  secretary  to  take  accurate  and  faithful  minutes  of  the 
entire  proceedings — namely,  of  citations ;  of  dilatory  mo- 
tions, or  delays  asked  and  granted  ;  of  challenges  against 
the  judge ;  of  exceptions  taken  by  the  parties ;  of  the  com- 
plaint or  accusation  of  the  plaintiff,  and  the  answer  of  the 
defendant ;  of  interrogations  or  positions,  or  specifications  of 
charges  ;  of  the  testimony  of  the  witnesses  ;  of  the  produc- 
tion of  instruments,  etc.,  etc.  All  this  is  expressly  set  forth 
in  the  above  decretal  of  Pope  Innocent  HI.  The  latter  says  : 
"  Fidehter  universa  judicii  acta  conscribant ;  videlicet 
citationes,  dilationes,  recusationes,  exceptiones,  petitiones, 
responsiones,  interrogationes,  confessiones,  testium  deposi- 
tiones,  instrumentorum  productiones,  interlocutiones,  ap- 
pellationes,  renunciationes,  conclusiones,  et  caetera  quae  oc- 
currerint,  competenti  ordine  canscribenda,  loca  designando, 
tempora  et  personas." '  The  notary  or  secretary  should,  on 
being  appointed,  take  an  oath,  though  not  on  pain  of  the 
nuUity  of  his  acts,  to  discharge  the  duties  of  his  office  faith- 
fully. 

Art  VIII. 
Judicial  Messengers  {Nuntii  judiciales). 

926.  As  in  secular,  so  also  in  ecclesiastical  courts,  mes- 
sengers {pedelli,  cursorcs,  apparitores ;  in  our  secular  courts 
they  are  called  constables,  marshals,  sheriffs,  etc.)  are  offi- 
cially employed  to  execute  the  orders  of  the  judge  or  court, 
to  summon  the  parties  or  litigants  to  trial — i.e.,  sers^e  the 

'  Cap.  28,  de  Test.  (ii.  20).     *  Cap.  11,  de  Prob.  cit. ;  ib.  Glossa,  v.  citationes,  etc. 


140  Organization  of  the  Bishop's  Court,  etc. 

citation  on  the  parties,  deliver  the  messages  of  the  court, 
etc'  In  the  United  States  the  citation  of  the  defendant  or 
accused  is  made  by  letter,  which  may  be  sent  by  mail  or 
messenger."  By  having  such  a  letter,  when  sent  by  mail, 
registered,  a  proof  is  at  once  had  of  its  delivery.  For  the 
recipient  of  a  registered  letter  is  obliged  to  sign  and  give  to 
the  mail  carrier  or  post-office  official  a  receipt  of  the  delivery 
of  the  letter,  which  receipt  is  transmitted  to  the  sender 

'Schmalzg.,  1.  ii.,  t.  i,  n.  14. 

«  Instr.  S.  C.  de  P.  F.,  20  Jul..  1878,  §  4,  Per  litteras. 


CHAPTER   II. 

OF    THE    archbishop's    COURT    OF    JUSTICE,    ALSO    IN    THE 
UNITED   STATES. 
{De  Curia  archiepiscopali^ 

927.  Organization  or  personnel  of  the  archbishop' s  court,  where 
the  common  law  of  the  Church  obtains. — Besides  the  episcopal 
jurisdiction  which  an  archbishop  has  in  his  own  diocese,  he 
possesses  also,  as  we  have  shown  elsewhere,'  a  metropolitan 
jurisdiction  over  his  suffragan  bishops  and  their  subjects. 
For  the  exercise  of  this  metropolitan  jurisdiction  archbishops 
usually  establislra  special  tribunal,  distinct  from  that  charged 
with  the  exercise  of  the  jurisdiction  of  the  archbishop's  own 
diocese.  However,  though  this  metropolitan  tribunal  is 
generally  distinct  from  the  diocesan  court  or  tribunal  proper 
of  the  archbishop,  it  is,  nevertheless,  in  form  and  construc- 
tion similar  to  it.  In  other  words,  it  is  composed  of  the 
archbishop  as  primary  ordinary  judge  ;  of  his  vicar-general 
as  vice-judge — that  is,  secondary  ordinary  judge ;  of  a  fiscal 
promoter,  a  secretary,  and  the  other  customary  officials." 

928.  Present  organization  of  the  archbishop' s  court  in  the 
United  States. — At  present,  according  to  the  recent  Instruc- 
tion of  the  S.  C.  de  P.  F.  of  July  20,  1878,  the  archbishop's 
court  with  us,  for  the  hearing  and  adjudication  of  criminal 
and  disciplinary  causes  of  ecclesiastics  appealed  to  it  from 
a  diocese  of  the  province,  is  formed  or  organized  in  the  same 
manner  as  the  archbishop's  diocesan  court  for  these  causes. 
Hence  this  metropolitan  tribunal  is  composed  of  the  arch- 
bishop or  his  vicar-general  as  judge,  and  of  the  Commission 
of  Investigation  as  a  board  of  assessors  to  whom  belongs 

'  Supra,  n.  530  sq.  *  Bouix,  1.  c,  p.  516. 


142  Of  the  Archbishop s  Court  of  yustice^ 

exclusively  the  trial  or  investigation  of  the  case  appealed.' 
From  the  principles  above  laid  down,  it  is  evident  that  the 
metropolitan  may  establish  two  distinct  Commissions  of  In- 
vestigation— one  for  the  hearing  of  causes  of  his  own  diocese, 
another  for  the  adjudication  of  causes  appealed  to  him  from 
his  province. 

929..  We  have  already  seen  that  it  is  allowed  to  appeal  to 
the  metropolitan  both  from  judicial  and  extrajudicial  griev- 
ances ;  that  the  archbishop  may  hear  these  appeals  either  in 
person  or  through  his  vicar-general  or  other  person  ;  that  in 
Catholic  countries  he  does  so,  as  a  rule,  not  personally,  but 
through  his  vicar-general.  Of  course,  archbishops  in  the 
United  States  may  also  allow  their  vicars-general  to  act  for 
them  in  this  matter, — that  is,  to  receive  appeals  and  convene 
the  Commission  of  Investigation,  by  whom  the  appeal  is 
heard  or  tried, — and  upon  the  conclusion  of  the  investigation 
or  hearing  of  the  appeal  by  the  Commission,  pass  sentence 
or  decide  the  appeal. 

930.  Hence  it  may  be  asked :  Can  the  archbishop  appoint 
one  and  the  same  vicar-general  to  exercise  diocesan  as  well 
as  metropolitan  jurisdiction  ?  We  reply  in  the  affirmative ; 
nay,  unless  the  archbishop  determines  otherwise,  the  vicar- 
general  appointed  by  him  is  to  be  considered  as  vested  both 
with  the  diocesan  and  metropolitan  jurisdiction.  When, 
however,  he  appoints  one  vicar-general  for  the  exercise  of 
the  diocesan  and  another  for  that  of  the  metropolitan  juris- 
diction, it  may  be  somewhat  disputed  whether  either  of 
them  can  be  regarded  as  vicar-general,  in  the  proper  sense 
of  the  term,  or  whether  each  in  the  case  is  not  simply  a 
delegate.  The  reason  is,  that  neither  of  them  would  seem 
to  have  that  universal  jurisdiction,  morally  speaking,  which 
a  vicar-general  ought  to  possess."  Hence  the  safer  course 
for  the  archbishop  will  be,  not  to  limit  the  jurisdiction  of  his 

'  Cf.  Instr.,  S.  C.  de  P.  F.,  20  Julii,  1878,  §  17,  Si  vero.        «  Supra,  n.  620. 


also  in  the  United  States.  143 

vicars-general  to  diocesan  or  metropolitan  matters,  especially 
as  he  can  always,  without  restricting  their  jurisdiction,  order 
the  one  to  confine  himself  to  diocesan,  the  other  to  metro- 
politan, causes  or  matters.' 

931.  When  is  it  allowed  to  appeal  from  the  suffragan  to 
the  metropolitan,  and  what  are  the  effects  of  such  an  appeal? 
Both  questions  have  already  been  sufficiently  answered  by 
us  :  the  first  in  Nos.  444,  449,  452,  531 ;  the  second  on  pages 
426  and  427  of  the  first  volume  of  this  work. 

^  Craiss.,  n.  5791. 


CHAPTER   III. 

OF  THE   ORDINARY  (SOLEMN   OR   FORMAL)    CANONICAL   TRIAL 
IN   CRIMINAL   CAUSES. 

{Processus  Criminalis  Ordinarius.) 

932.  By  an  ordinary  or  formal  canonical  criminal  trial 
{processus  ordinarius,  solemnis,  Judicium  plenarium)  is  meant 
that  mode  of  procedure  for  the  punishment  of  crime  where 
all  the  prescribed  formalities,  both  essential  and  non-essential 
in  the  sense  above  explained,'  are  accurately  observed." 

SECTION  I. 
Various  Modes  of  beginning  Canonical  Criminal  Trials. 

933.  A  formal  canonical  criminal  trial  can  be  initiated 
or  take  place  in  four  ways:  i,  by  way  of  accusation;  2,  of 
denunciation;  3,  of  inquiry;'  4,  and  of  exception.  Let  us 
briefly  explain  each  of  these  modes. 

Art.  I. 

Mode  of  procedure  by  way  of  accusation  {Processus  per  viatn 

accusationis). 

934.  This  method  consists  in  this,  that  a  person  charges 
another  with  a  crime  before  the  competent  judge  and  in  a 
lawful  manner,  and  assumes  the  obligation  of  proving  his 
charge,  and  that  for  the  purpose  of  having  the  offender  pun- 

'  Supra,  n.  692,  693.  *  lb.,  n.  698;  Craiss.,  n.  5789. 

"  Cap.  16,  de  Acous.  (v.  .x)-  Cap.  31,  de  Simon,  (v.  3). 


Canonical  Trial  in  Criminal  Causes.  145 

ished,  and  thus  satisfying  the  demands  of  justice.'  Accord- 
ing to  the  positive  law  of  the  Church,  the  accusation  or  crimi- 
nal charge  has  to  be  made  in  writing.  We  s?Ly,  positive  law  ; 
for,  by  custom  to  the  contrary,  it  can  be  made  also  orally,  at 
the  present  day,  provided  it  be  taken  down  in  writing  by  a 
public  notary  or  official." 

935.  The  charge  {libelhis)  should  be  properly  drawn  up 
— that  is,  it  should  express  the  names  of  the  judge  before 
whom  the  accusation  is  made,  of  the  accuser  and  accused, 
the  nature  of  the  crime,  the  place,  year,  and  month  of  its 
commission.'  Moreover,  by  the  positive  common  law  of  the 
Church,  it  should  be  signed  by  the  accuser,  who  by  this  sig- 
nature pledges  himself  to  prove  the  charges,  or  if  he  fails  to 
do  so,  to  suffer  the  same  punishment  {poena  talionis)  which 
the  accused  would  have  incurred  had  he  been  found  guilty.' 
Of  course  this  poena  talionis  or  retaliative  punishment  was" 
not  incurred  unless  it  appeared  that  the  accuser  had  falsely 
and  maliciously  made  the  accusation.  We  said,  by  the  positive 
common  law  of  the  Church  ;  for  it  is  the  opinion  of  most  canon- 
ists that  the  law  of  the  poena  talionis  has  been,  at  least  gen- 
erally speaking,  abrogated  by  custom  to  the  contrary,  and  is 
no  longer  in  force,  at  least  generally.* 

936.  It  will  be  observed  that  the  procedure  by  way  of 
accusation,  as  above  described,  was  surrounded  with  many 
difficulties.  The  role  of  an  accuser  was  a  perilous  one, 
owing  to  the  fact  that  he  was  bound  under  the  pain  of  retalia- 
tion {poena  talionis)  to  prove  his  charge.  Hence,  few  were 
found  willing  to  undertake  the  dangerous  task  of  an  accuser; 
and  those  who  did  undertake  it  acted  mostly  from  feelings 

1  Reiff.,  1.  5,  t.  I,  n.   5;  Schmalzg.,  1.  5,  t.  i,  n.  21;  Craiss.,  n.  5800. 

*  Bouix,  de  Jud.,  vol.  ii.,  p.  5. 

^  L.  Libellorum  3  ff.  de  Accus.  et  inscript.  (48.  2). 

*  lb.,  §  2  item;  L.  7  ff.  eod.  tit.;  Cap.  16,  de  Accus.  (v.  i). 

5  Schmalzg.,  1.  2,  t.  i,  n.  23;  Stremler,  1.  c,  p.  83;  Craiss.,  n.  5802,  of.  tamen 
Bouix,  1.  c,  p.  33. 


146  Of  the  Ordinary  Canonical  Trial 

or  motives  of  revenge  or  private  interest.     Thus  it  came  to 
pass  that  many  crimes  remained  unpunished. 

937.  For  these  and  other  reasons  of  a  similar  kind,  Pope 
Innocent  III.,  the  greatest  canonist  and  lawgiver  of  his  age, 
established  the  modes  of  procedure  by  way  of  denunciation 
and  inquiry,  as  ordinary  modes  of  procedures,  or  as  trials 
which  should  be  ordinarily  made  use  of.  We  say,  as  ordinary 
modes;  for  before  the  time  of  this  Pope  these  modes  had 
indeed  existed,  but  only  as  extraordinary  modes  of  proce- 
dure. Yet  the  mode  of  procedure  by  way  of  accusation  was 
not  abolished  by  this  Pontiff.  For,  in  his  celebrated  decretal 
Qualiter  ct  quando^  he  expressly  enumerates  this  method,  as 
approved  and  lawful.  Nevertheless,  it  soon  fell  into  almost 
total  disuse ;  so  that  at  present  the  usual  mode  of  procedure 
is  by  way  of  inquiry. 

938.  Hence  it  may  be  asked  whether  the  mode  of  pro- 
cedure by  way  of  accusation  is  unlawful  at  present  ?  We. 
think  not,  at  least  so  far  as  its  substance  is  concerned.  For  it 
has  never  been  abolished  by  any  positive  law,  or  by  custom. 
Not  by  any  positive  law ;  for  it  is  certain  that  no  such  law 
exists.  Nor  by  custom  to  the  contrary.  For  the  custom 
above  referred  to — namely,  the  disuse  into  which  the  pro- 
cedure by  accusation  has  fallen — is  simply  one  of  preference 
for  the  trial  by  way  of  inquisition,  not  one  reprobating  that 
by  way  of  accusation.  Hence  this  latter  mode  may  still  be 
resorted  to,  especially  where  the  accuser  has  an  interest  in 
the  punishment  of  the  delinquent;  nay,  as  Bouix  remarks, 
there  may  be  cases  where  it  is  far  better  and  more  effective 
than  its  more  favored  rival — the  trial  by  inquiry.* 

939.  The  effects  of  a  criminal  charge  or  accusation  may 
be  viewed  chiefly  so  far  as  they  concern  either  the  judge  or 
the  accused.  The  judge,  upon  receiving  a  criminal  charge, 
can  and  should  proceed  to  take  cognizance  of  the  case.    The 

'  Cap.  24,  de  Ace.  (v.  i).  '  Bouix,  1.  c,  vol.  ii.,  p.  30;  Stremler,  1.  c,  p.  84. 


in  Criminal  Causes.  147 

effects  upon  the  accused  are  the  same  as  in  the  case  of  pro- 
cedure by  way  of  inquiry  or  denunciation,  which  will  be 
described  farther  on, 

940.  Can  a  person,  in  the  ecclesiastical  court,  be  again 
accused  of  and  tried  for  a  crime  for  which  he  has  been  once 
already  tried,  and  either  found  guilty  and  condemned  or  not? 
He  cannot,  generally  speaking.'  The  law  of  the  Church 
herein  but  imitates  the  clemency  of  God,  who,  once  He  has 
forgiven  the  sin,  does  not  allow  it  to  be  revived  again  for 
punishment.''  We  said,  generally  speaking ;  since  there  are 
some  exceptions,  for  which  see  Reiffenstuel,  1.  c,  n.  42  sq. 

941.  Can  a  criminal  action  or  accusation  be  extinguished 
in  the  ecclesiastical  court  by  prescription  ?  In  other  words  : 
Is  it  forbidden  to  accuse  or  try  a  person  for  a  crime  after  a 
certain  time  has  elapsed  from  the  time  the  offence  was  com- 
mitted? It  is,  by  the  Roman  law,  adopted  by  the  sacred 
canons.  Now,  by  the  Roman  law,  no  person  could  be 
accused  of  or  tried  for  sins  of  the  flesh,  five  years  after  the 
offence  was  committed; '  nor  for  other  crimes,  twenty  years 
after  the  offence  was  perpetrated.*  Custom,  hov/ever,  does 
not  at  present  observe  this  law,  and  seems  to  allow  of  a  crime 
being  prosecuted  in  ecclesiastical  courts  at  any  time/ 

Art.  II, 

Mode  of  procedure,   or   beginning  criminal  trials,  by  way   of 
denunciation  {^Processus  per  viatn  denunciationis). 

942.  By  denunciation,  we  here  understand  the  manifesta- 
tion of  a  crime  made  to  the  superior  by  a  person  who  does 
not  assume  the  obligation  of  proving  the  charge.     The  latter 

'  Cap.  6,  de  Accus. ;  Glossa,  ib. ;  L.  6  ff.  Nautae,  §  4  (4.  9). 

*  Can.  23,  29.  q.  4;  Reiff.,  lib.  v.,  t.  i,  n.  41. 

3  L.  29,  §  5  ff.  Ad  leg.  Jul.  de  adult.  (48.  5). 

■*  L.  12,  C.  ad  leg.  Corn,  de  falsis.  ^  Schmalzg.,  1.  5,  tit.  I,  n.  121. 


148  Of  the  Ordinary  Canonical  Trial 

clause  shows  how  denunciation  differs  from  accusation.  A 
person  who  denounces  another  may  have  two  objects  in 
view :  first,  to  have  the  offender  simply  reprimanded  by 
the  superior  as  a  father  ;  second,  to  have  him  punished  by 
the  superior  in  the  capacity  of  ecclesiastical  judge.  Hence 
there  are  two  kinds  of  denunciation — paternal  {denunciatio 
evangelica,  fraterna,  etc.)  and  judicial  {denunciatio  judicialis). 
The  denunciation  is  evangelical,  when  the  delinquent,  having 
as  a  rule  been  charitably  admonished,  but  without  effect,  is 
denounced  to  the  superior  as  a  father,  not  indeed  to  be 
punished,  in  the  strict  sense  of  the  word,  but  to  be  corrected 
paternally.' 

943.  Judicial  denunciation,  which  is  here  chiefly  under 
discussion,  is  that  which  is  made  to  the  superior  or  bishop 
in  his  capacity  of  ecclesiastical  judge,  in  order  that  he  may 
proceed  against  the  offender  judicially,  and  punish  him.' 
This  judicial  denunciation,  therefore,  serves  as  a  basis  for 
judicial  proceedings  against  the  offender,  while  the  evangeli- 
cal cannot,  generally  speaking,  serve  as  such  basis. 

944.  Q.  What  crimes  can  be  judicially  denounced  ? 

A.  I.  Those  whi'ch  common  fame  reports  as  having  been 
committed,  and  that  even  when  the  person  who  makes  the 
denunciation  is  not  able  to  suggest  or  indicate  to  the  judge 
any  other  proofs  of  the  guilt.  The  reason  is,  that  common 
fame  is  of  itself  sufficient  to  authorize  the  judge  to  inquire 
into  the  guilt  of  the  alleged  delinquent — i.e.,  to  begin  the 
process  of  inquiry  against  him.'  2.  It  is  controverted 
whether  an  occult  crime,  even  though  provable,  can,  gen- 
erally speaking,  be  judicially  denounced.  Those  who  hold 
the  affirmative  contend  that  the  publicity  of  the  crime,  or 
defamation,  is  required,  only  when  the  judge  proceeds  by 
way  of  inquiry,  and  that  ex  mero  officio,  but  not  when  he  pro- 


'  Soglia,  vol.  ii.,  p.  299,  ed.  Vecch. 

*  Reiff.,  1.  c,  n.  83;  Schmalzg.,  1.  c,  n.  151.  *  Bouix,  1.  c,  p.  44. 


in  Criminal  Causes.  149 

ceeds  upon  a  denunciation,  or  at  the  instance  of  another 
person.  For,  in  the  latter  case,  the  person  denouncing 
takes  the  place  of  the  accuser  or  of  common  fame.'  Those 
wno  hold  the  negative,  say  that  the  judicial  denunciation  is 
not,  strictly  speaking,  a  distinct  and  separate  mode  of  proce- 
dure, but  serves  rather  as  a  means,  or  an  occasion  for  begin- 
ning proceedings  by  way  of  inquiry  ;  that,  consequently,  as 
defamation  is  necessary  for  the  process  of  inquiry,  so  also  it 
is  requisite  for  the  trial  by  denunciation.  Thus  the  Glossa'^ 
expressly  says:  "Si  vero  procedat  judex  ad  petitionem 
alicujusprocurantisinquisitionem  .  .  .  cognoscet  prius  judex 
utrum  "  (denuntiatus)  "  sit  infamatus,  et  postea  procedet 
super  iis  quae  denuntiata  sunt ;  alias  non  procedat,  nisi 
primo  constet  quod  infamatus  sit.''  .  .  .  Hence,  say  the  advo- 
cates of  this  opinion,  the  ecclesiastical  judge  cannot,  as  a 
rule,  proceed  judicially  against  a  person,  upon  a  mere  judi- 
cial denunciation,  unless  there  exists  also  defamation.  Bouix ' 
holds  that  this  applies  even  when  the  diocesan  promoter, 
or  prosecuting  official,  makes  the  denunciation  or  complaint. 
Of  the  two  above  opinions,  the  negative  seems  the  safer.* 
However,  whether  the  first  or  second  opinion  is  held,  it  is 
certain  that  in  some  few  cases  an  occult  crime  can  be  de- 
nounced— namely,  where  it  would  inflict  a  grave  injury 
upon  a  community  or  a  third  party.*  3.  It  is  certain  that  a 
crime  which  is  occult,  and  at  the  same  time  not  provable, 
cannot,  as  a  rule,  be  judicially  denounced.  The  reason  is 
that  the  denunciation  in  the  case  would  be  worse  than 
useless.  For  it  would  simply  result  in  the  defamation  of  the 
accused,  while  the  judge  could  not  condemn  him,  as  in  the 
supposition  the  crime  could  not  be  proved. 

945.  How  should    the   judicial   denunciation   be   made? 
Nearly  all  the  formalities  prescribed  for  the  trial  by  way  of 

'  Reiff.,  1.  c,  n.  88;  Schmalzg.,  1.  c,  n.  157. 

'  In  cap.  24,  de  Ace,  v.  ad  inquirendum.  **  L.  c,  p.  79. 

*  Cf.  Miinchen,  1.  c,  vol.  i.,  p.  489,  n.  6,  7.  *  Reiff.,  1.  c,  n.  8g. 


150  Of  the  Ordinary  Canonical  Trial 

accusation,  must  be  observed  and  that  on  pain  of  nullity. 
Hence,  as  in  the  trial  or  process  by  way  of  accusation,  so  in 
the  trial  by  way  of  denunciation,  it  is  necessary  :  i.  That  the 
denunciation  be  made  in  writing,  which  should  contain  the 
name  of  the  judge,  of  the  person  denouncing,  and  the  person 
denounced;  the  nature  of  the  offence;  the  place  and  time 
where  and  when  it  was  committed ;  the  day  when  the 
denunciation  was  made.  2.  That  the  person  making  the 
denunciation  name  the  witnesses,  and  point  out  or  indicate 
to  the  judge  the  other  proofs — v.g.,  instruments — in  his  pos- 
session, so  as  to  enable  him  to  determine  whether  the  denun- 
ciation can  be  sustained  or  not,  and,  consequently,  whether 
it  should  be  received  or  rejected.  Here  we  see  one  of  the 
differences  between  denunciation  and  accusation.  In  the 
trial  by  way  of  denunciation,  the  denouncer  is  not  bound  to 
prove  his  charges,  but  simpl}^  to  indicate  the  proofs  to  the 
judge  ; '  in  the  trial  by  way  of  accusation,  the  accuser  must 
prove  the  charges. 

946.  Q.  What  are  the  chief  effects  of  a  judicial  denuncia- 
tion, id)  upon  the  judge,  {U)  the  person  denouncing,  (r)  and 
the  person  denounced  ? 

A.  I.  As  regards  the  judge,  the  effect  is  that  he  is  bound 
to  inquire  into  the  alleged  offence,  and  begin  judicial  pro- 
ceedings against  the  alleged  offender — v.g.,  to  summon  and 
examine  witnesses,  etc.'^  2.  The  denouncer,  as  we  have 
seen,  must  name  the  witnesses  and  place  the  judge  in  pos- 
session of  the  other  proofs  alleged  by  him  to  exist.  If  he  is 
convicted  of  having  knowingly  and  maliciously  made  a  false 
denunciation,  he  should  be  punished  as  a  calumniator;  nay, 
even  where  he  merely  fails  to  give  proper  proofs,  even 
though  no  malice  be  shown,  he  is  presiwied  to  be  a  calum- 
niator, and  should  be  punished  as  such  until  he  has  proved 
his   innocence.'     Among   the   punishments   which  may,  ac- 

'  Reiff.,  1.  c,  n.  96.  *  Nov.  17,  cap.  3;  Reiff.,  1.  c,  n.  125. 

2  Cap.  2,  de  Calumn.  (v.  2);  ib.  Glossa,  v.  Calumniandi. 


in  Criminal  Causes.  151 

cording  to  law,  be  inflicted  upon  calumniators,  the  following 
is  noteworthy,  as  being  still  in  force:  Where  an  ecclesiastic 
is  found  guilty  of  having  calumniated  another  ecclesiastic, 
he  should  be  deprived  of  his  ecclesiastical  office  and  bene- 
fice/ 

947.  3.  Generally  speaking,  the  person  denounced  can- 
not, pending  the  denunciation,  be  promoted  to  ecclesiastical 
dignities  or  benefices,  or  to  sacred  orders."^  The  same  holds 
true  of  a  person  against  whom  judicial  proceedings  by  way 
of  accusation  and  inquiry  are  pending.  The  reason  is  that 
while  a  person  is  not  considered  guilty  by  the  mere  accusa- 
tion, or  judicial  denunciation  or  inquiry,  he  is  nevertheless 
thereby  lowered  in  the  estimation  of  others.  Observe  that 
a  judicial  denunciation,  accusation,  or  inquiry  only  hinders 
a  person  from  being  appointed  to  an  office,  etc.,  as  stated, 
but  not  from  the  exercise  or  administration  or  jurisdiction 
of  an  office  or  dignity  already  possessed.  Hence  a  bishop 
or  other  ecclesiastical  superior,  accused  or  denounced  by 
his  subjects  or  others,  is  not  thereby,  as  a  rule,  prohibited 
from  continuing  the  exercise  of  the  powers  of  his  office. 
We  say,  as  a  rule  ;  for  the  following  two  cases  are  excepted : 
I.  The  prelate  or  superior  in  the  case  cannot,  pending  the 
denunciation,  exercise  his  jurisdiction  with  regard  to  the 
particular  matter  or  cause  which  is  the  subject  of  the  denun- 
ciation ; '  2,  A  prelate  denounced  of  wasting  or  dilapidating 
ecclesiastical  goods  or  property,  remains,  pending  the  case, 
suspended  from  the  administration  of  such  property.* 

948.  Note. — At  the  present  day  judicial  denunciation,  in 
the  proper  sense  of  the  word,  is  but  rarely  resorted  to.  In 
fact,  private  individuals  now  scarcely  ever  use  the  right 
given  them  by  the  sacred  canons  to  make  a  judicial  denunci- 
ation, except  where  their  private  or  personal  interests  are 

'  Cap.  I,  de  Calumn. ;  Reiff.,  1.  v.,  t.  2,  n.  4  sq. 

*  Ex  cap.  4,  de  Accus. ;  Reiff.,  1.  v.,  t.  i,  n.  130  sq. 

3  Ex  cap.  olim  26,  de  Accus.         *  Cap.  27,  de  Accus. ;  Reiff.,  1.  c,  n.  139. 


152  Of  the  Ordinary  Canonical  Trial 

at  stake.  In  all  other  circumstances,  judicial  denunciations 
proper  are,  at  present,  made  only  by  the  bishop's  official  or 
diocesan  promoter/ 

949.  Of  canonical  or  legal  demmciation. — Some  canonists 
divide  denunciation  into  evangelical,  judicial,  and  canonical. 
Strictly  speaking,  however,  the  canonical  is  a  species  of  the 
judicial  denunciation.  For  the  sake  of  greater  clearness,  we 
shall  here  briefly  explain  what  is  meant  by  this  canonical 
denunciation.  By  it  we  mean  the  denunciation  which  the 
sacred  canons  prescribe  in  certain  cases  for  the  common 
good."  Now  the  law  of  the  Church  imposes  the  obligation 
of  denouncing  chiefly :  i.  Impediments  to  marriages,  to  the 
reception  of  sacred  orders,  to  the  promotion  to  ecclesiastical 
dignities  and  benefices.  2.  Heretics  and  apostates ;  those 
who  aid  and  abet  them,  or  read,  keep,  or  sell  their  works. 
3.  Confessors  who  demand  of  their  penitents  the  name 
of  the  accomplice.^  4.  Confessarios  soUicitantes  ad  turpia 
occasione  vel  praetextu  confessionis.*  5.  Members  of  secret 
societies.  6.  Bishops  and  other  superiors,  parish  priests, 
etc.,  who  are  guilty  of  excess,  or  maladministration  of  their 
office.  The  reason  is  that  the  common  good  requires  that 
unworthy  superiors  shall  be  corrected,  and,  if  obstinate,  re- 
moved from  their  office.  However,  not  all  are  indiscrimi- 
nately entitled  or  bound  to  denounce  delinquent  superiors, 
but  only  those  who  are  directly  concerned — that  is,  the  sub- 
jects.* Thus  the  right  as  well  as  duty  of  reporting  the 
bishop's  excesses  to  Rome  belongs  only  to  his  ecclesiastics ; 
that  of  informing  on  delinquent  rectors  of  congregations,  to 
these  congregations." 

950.  From  the  above  cases  it  will  be  seen  that  the  canoni- 
cal denunciation  is  established  for  the  purpose  of  averting 

'  Stremler,  1.  c,  pp.  93,  106.  'Stremler,  1.  c,  p.  97. 

'Const.  Apostolici,  Bened.  XIV.  ^Bened.  XIV.,  Const.,  i  Jun.,  1741. 

*  Can.  45,  46,  47,  48,  Caus.  2,  q.  7.  *  Schmalzg.,  1.  c,  n.  166. 


in  Criminal  Causes.  153 

spiritual  injury  from  a  community  or  private  individual.' 
However,  as  Stremler"  observes,  the  obligation  of  making 
the  denunciation  in  some  of  the  above  cases  can  scarcely  be 
said  to  exist  any  longer.  In  fact,  crimes  committed  against 
the  Catholic  Church  have  unhappily  become  so  common, 
that  it  is  well-nigh  impossible  for  the  Church  to  punish  the 
offenders.  We  observe,  moreover,  with  Stremler,^  that  anony- 
mous denunciations  should  be  rejected  as  calumnious,  and 
utterly  unworthy  of  belief/ 

Art.  III. 

Process  or  Trial  by  way  of  Inquiry  {^Processus  per  viam  Inquisi- 

tionis). 

95 1.  The  mode  of  procedure  in  criminal  causes — which,  as 
we  have  seen,^  is  at  present  in  use  in  ecclesiastical  courts, 
even  to  the  exclusion  of  the  trial  by  accusation — is  by  wav  of 
inquiry  or  investigation.  Before  the  time  of  Pope  Innocent 
III.  this  process  was  resorted  to  but  rarely,  and  only  in 
extraordinary  cases.  The  ordinary  way  of  procedure  was  by 
accusation.  This  learned  Pope,  as  already  intimated,  brought 
the  trial  by  way  of  inquiry  into  prominence,  and  from  his 
time  it  began  to  be  substituted  for  the  trial  by  way  of 
accusation.  At  the  present  day  it  has  come  to  be  the  usual 
and  commonly  adopted  mode  of  procedure  in  ecclesiastical 
courts.*  The  mode  of  procedure  to  be  followed  by  our 
bishops  in  hearing  and  deciding  criminal  and  disciplinary 
causes  of  ecclesiastics,  as  prescribed  by  the  S.  C.  de  Prop. 
Fide,  July  20,  1878,  is  also  by  way  of  inquiry,  and  partakes  to 
a  considerable  extent  of  the  nature  and  properties  of  the 
canonical  trial  by  way  of  inquiry.     This  is  indicated  by  the 

'  Reiff.,  1.  c,  n.  147.  '  L.  c,  p.  102.  ^  lb.,  p.  100. 

■*  S.  C.  I.,  10  Martii,  1677;  Ferraris,  v.  denunciatio,  n.  i  et  50. 
"  Supra,  n.  937.  «  Schmalzg.,  1.  c,  n.  172. 


154  Of  the  Ordinary  Canonical  Trial 

very  title  of  the  Commissions  established  here  by  the  Holy 
See.    They  are  called  Commissions  of  Investigation  or  Inquiry. 

952.  What  then  is  here  meant  by  inquiry  iinquisitid)  ?  To 
inquire  into,  means,  grammatically,  to  search  into,  investigate, 
examine  into,  and  find  out  by  careful  examination,  etc.  In 
jurisprudence,  it  signifies  the  searching  into  a  matter,  not  as 
done  by  everybody,  but  only  \iy  \kve.  judge  ;  nay,  it  expresses 
not  every  act  of  investigation  even  of  a  judge,  but  only  that 
which  is  made  by  him  in  erimijial  matters — that  is,  for  the 
purpose  of  discovering  crimes  and  criminals.'  Hence  the 
inquiry  or  investigation,  as  here  understood,  is,  speaking  in 
general,  the  act  of  the  bishop  or  ecclesiastical  judge  lawfully 
seeking  to  discover  crimes  or  criminals.^ 

953.  There  are  three  kinds  of  inquiry :  A  general,  a 
special,  and  a  mixed.  The  inquiry  \s  general  {inquisitio  gener- 
alis),  when  the  ecclesiastical  judge  or  superior  inquires  in 
general,  and  without  naming  any  specific  crime  or  criminal, 
whether  either  in  his  whole  diocese  or  some  part  of  it  any 
crimes  are  committed,  or  the  laws  of  the  Church  or  statutes 
of  the  diocese  violated ;  special  {inquisitio  specialis),  when  both 
the  crime  and  the  criminal  are  specified — namel}',  when  the 
judge  examines  whether  a  certain  person  {^>.g.,  Peter)  has 
committed  a  certain  crime  iv.g.,  slander) ;  mixed  {inquisitio 
mixta),  when  {ci)  either  the  crime  to  be  inquired  into  is  speci- 
fied, but  its  author  is  uncertain  and  not  specified — v.g.,  when 
the  judge  inquires  thus:  Who  has  committed  this  mur- 
der? {h)  or  vice  versa,  when  the  presumed  offender  is  ex- 
pressed, but  the  offence  not  specified — v.g.,  if  the  inquiry  is  : 
Has  Peter  committed  any  crime  or  violated  any  law  ?'  Each 
of  these  kinds  of  inquiry  may  be  paternal  or  judicial,  accord- 
ing as  its  object  is  either  simply  the  reformation  of  the 
offender  or  his  punishment. 

'  Bouix,  de  Jud.,  vol.  ii.,  p.  60. 

'  Reiff.,  I.  5,  t.  I,  n.  149;  Schmalzg.,  eod.  n.  172. 

•Schmalzg.,  1.  c,  n.  174  sq.;  Stremler,  1.  c,  p.  138. 


in  Criminal  Causes.  155 

954.  Q.  Can  the  ecclesiastical  judge  or  superior  proceed 
against  any  one  by  way  of  inquiry  without  previous  ill-fame  ? 

A.  We  premise:  i.  The  inquiry  is  either  general,  or 
special,  or  mixed.  2.  Again,  the  ecclesiastical  superior  or 
judge  proceeds  {a)  either  absolutely  ex  officio,  or  ex  mero 
officio — that  is,  without  being  officially  requested  to  do  so  by 
any  one,  thus  acting  at  the  same  time  as  judge  and  plaintiff 
or  prosecutor,  {U)  or  ex  officio  indeed,  but  at  the  instance  of 
a  third  party — namely,  either  of  a  private  person  or  the  pub- 
lic prosecutor.  3.  Finally,  the  inquiry  is  either  paternal  or 
judicial.' 

955.  We  now  answer:  i.  The  rule  is  that  the  superior  or 
judge,  when  proceeding  absolutely  ex  officio,  cannot  institute 
a  special  judicial  inquiry  against  any  one  who  has  not  been 
previously  designated  by  public  opinion,  fame,  or  report,  as 
the  party  guilty  of  the  crime  for  which  the  inquiry  is  to  be 
instituted.^  This  is  certain  and  beyond  controversy,  and  fol- 
loAvs  from  the  principles  above  laid  down."  This  is  proved 
from  the  decretal  Inquisitionis  21,  de  Ace,  where  Pope  Inno- 
cent III.  expressly  says:  '' Ad  haec  respondemus  nullum 
esse  pro  crimine,  super  quo  aliqua  non  laborat  infainia,  sen 
clamosa  insinuatio  non  praecesserit,  propter  dicta  hujusmodi 
puniendum  :  quinimmo  super  hoc  depositiones  contra  eum 
recipi  non  debere,  cum  inquisitio  fieri  debeat  solummodo 
super  illis,  de  quibus  clamorcs  aliqui  praecesserunt."  The 
same  is  clear  also  from  the  decretal  Qualiter et qnando,*  issued 
by  the  same  Pope,  in  the  Lateran  Council  held  in  1216. 
This  decretal  says :  "  Sicut  accusationem  legitima  debet 
praecedere  inscriptio,  sic  et  .  .  .  inquisitionem  clamosa  in- 
sinuatio praevenireT 

956.  This  holds  so  true,  that,  unless  a  previous  public  re- 
port exists  of  the  guilt,  not  even  the  swo^n  testimony  of  two 

'  Bouix,  I.  c,  p.  61. 

'  Cap.  21  et  24,  de  Ace;  Schmalzg.,  1.  5,  t.  i,  n.  196;  Reiff.,  I.  c,  n.  173. 

^  Supra,  n.  944.  ■»  Cap.  24,  de  Ace. ;  cf.  cap.  19,  de  Ace.  (v.  i). 


^5^  Of  the  Ordinary  Canonical  Trial 

or  more  witnesses,  who  depose  that  they  saw  the  party  com- 
mit the  crime,  suffices  to  authorize  the  judge  to  proceed  to  a 
special  judicial  inquir}-  against  any  one.'  The  reason  is,  that 
the  crime  in  the  case,  being  known  only  to  two  or  three,  is 
still  occult;  and  consequently  should  not  be  made  public 
by  the  inquiry.  Hence  it  is  necessary  that  the  report  of  a 
crime  committed  by  a  person  be  diffused  through  the 
greater  part  of  the  neighborhood  or  community  in  which 
the  delinquent  lives."  In  fact,  the  ecclesiastical  judge  should 
not  proceed  to  the  punishment  of  crimes,  save  upon  public 
knowledge  or  information.  Now,  the  knowledge  of  a  crime, 
which  is  neither  derived  from  common  fame,  nor  something 
equivalent  to  it,  is  not  public  knowledge.  Therefore,  etc. 
Again,  a  person  could  justly  complain  that  an  injury  was 
done  him  if  he  were  subjected  to  such  inquiry  without  any 
previous  current  report  of  his  alleged  guilt.  For  by  such 
inquiry  he  would  come  to  be  suspected  of  crime,  and 
grievously  suffer  in  his  reputation  or  good  name.' 

957.  We  said  above,*  the  rule  is ;  for  there  are  certain 
exceptions,  as  appears  from  the  sacred  canons  and  the  com- 
mon opinion  of  canonists.  The  following  are  the  exceptions 
— that  is,  the  cases — where  no  previous  ill-fame  is  required 
for  a  special  judicial  inquiry:  i.  When  a  person  has  con- 
fessed his  crime  in  court."  2.  When  the  crime  has  been 
committed  in  court — v.g.,  if  a  witness  makes  a  false  statement 
before  the  judge.  Observe  that  these  two  cases  can  scarcely 
be  said  to  be  exceptions  to  the  rule  given.  For  the  occult 
crime  in  the  case  becomes  notorious,  notorietate  juris,  from 
the  very  fact  of  its  being  thus  confessed  or  committed  in  open 
court.'  3.  In  crimes  of  heresy,  apostasy,  or  other  very  great 
crimes  which  are  very  injurious  to  the  common  welfare  of 
the  faithful.    In  these  crimes  the  ecclesiastical  judge   can 

'  Cap.  21,  de  Accus. ;  cap.  24,  de  Ace;  ib.  Glossa,  v.  ad  inquirendum. 
«  Schmalzg.,  1.  c,  n.  197.  *  lb.,  n.  196.  *  Supra,  n.  955. 

*  Cap.  I,  in  6°  (v.  i).  •  Bouix,  1.  c,  p.  70. 


in  Criminal  Cmises.  157 

proceed  to  a  special  judicial  inquiry  when  there  are  grave 
suspicions,  even  though  there  be  no  pubhc  report.  4.  When 
the  crime  tends  directly  to  inflicting  an  injury  upon  a  third 
party,  whether  it  be  a  private  individual  or  a  community.  5. 
When  there  are  very  strong  indications  of  guilt — v.g.,  when 
a  person  keeps  up  a  familiar  intercourse  with  the  criminals 
who  are  known  as  such,  or  has  fled  to  avoid  appearing  in 
court.  For  these  and  similar  acts  take  the  place  of  public 
report.  6.  When  the  person  against  whom  the  inquiry  is 
made  is  present  and  does  not  protest,  where  the  judge  pro- 
ceeds to  a  special  judicial  inquiry  without  previous  public 
opinion.  The  reason  is  that  the  supposed  delinquent  thus 
tacitly  waives  his  right,  and  therefore  can  blame  nobody  but 
himself,'  if  the  judge  proceeds  without  common  fame. 

958.  Where  the  ecclesiastical  judge  proceeds  to  a  special 
judicial  inquiry  save  in  the  cases  excepted,  his  acts  and  judi- 
cial proceedings  are  not  only  illicit,  but  invalid,  and  that  in 
such  manner  that  even  where  the  guilt  is  subsequently  fully 
and  canonically  proved  in  the  trial,  the  guilty  party  cannot  be 
convicted  or  condemned."  Note. — We  observe  with  Bouix,' 
that  the  above  law  of  the  Church,  requiring  previous  public 
report  or  common  fame,  has  not  been  abrogated  either  by 
the  Council  of  Trent  or  by  any  other  subsequent  Papal 
enactment,  and  is  therefore  in  full  force  at  the  present  day. 

959.  Q,  Is  previous  ill-fame  or  public  report  also  requisite 
when  the  judge  institutes  a  special  judicial  inquiry  at  the 
instance  of  a  third  party  ? 

A.  We  premise:  This  third  party,  as  we  have  seen,  is 
either  a  private  individual  or  the  public  official  appointed  to 
prosecute  crimes.  We  now  answer:  There  are  two  opin- 
ions. The  negative  holds  that  no  previous  defamation  or 
common  fame  is  required,  even  when  the  denouncer  is  a 

'  Schmalzg.,  1.  c,  n.  207. 

*  Cap.  21  et  24,  de  Ace. ;  Schmalzg.,  1.  c,  n.  198.  '  L.  c,  p.  71. 


158  Of  the  Ordinary  Canoiiical  Trial 

private  person,  and,  a  fortiori,  when  he  is  the  public  or  dio- 
cesan promoter.'  This  opinion,  at  least  so  far  as  the  public 
promoter  is  concerned,  is  the  one  more  commonly  followed 
by  canonists."  The  reason  on  which  this  view  is  based  is, 
that  the  denouncer  in  the  case  takes  the  place  of  common 
fame.  The  affirmative,  which  is  maintained  by  very  able 
canonists,  such  as  Bouix  '  and  Craisson "  among  the  more 
recent  authors,  seems,  however,  grounded  upon  strong  argu- 
ments. In  fact,  the  decretals  above  cited, °  which  are,  as  we 
have  noted,  still  in  force,  point  unmistakably  to  the  necessity 
of  previous  public  report  in  all  cases  where  a  special  judicial 
inquiry  is  to  be  instituted,  even  though  at  the  instance  of  a 
third  party,  whether  it  be  a  private  person  or  public  official. 
960.  Of  course  the  exceptions  given  above,^  ^PP^V  here 
also,  even  though  the  affirmative  be  adopted.  However,  as 
has  been  observed,  most  of  these  exceptions  can  scarcely  be 
called  exceptions,  since  their  very  nature  involves  publicity 
at  least  of  the  law.  Bouix  grants  at  most  that  the  only  cases 
where  the  ecclesiastical  judge  seems  justified  in  proceeding 
without  previous  common  fame  are  those  where  the  interests 
of  a  third  party,  who  is  innocent,  are  directly  injured  by  the 
occult  crime.  For  the  interests  of  a  •  third  innocent  party 
should  be  protected  rather  than  the  reputation  of  an  occult 
criminal.  He  holds  that  where  the  crime  is  injurious  only 
to  the  delinquent  himself,  and  not  to  a  third  party,  there  must 
always  be  previous  defamation.  In  illustration  of  this  view 
he  adduces  the  following  example :  Suppose  one  or  two 
persons  know  that  a  parish  priest  who  enjoys  a  good  reputa- 
tion is  guilty  of  some  occult  crime,  which,  however,  does  not 
redound  to  the  spiritual  injury  of  his  flock.  Here  it  is 
manifest  that  to  institute  a  special  judicial  inquiry,  and  thus 

'  L.  Ea  quidem   7,  C.  de  Ace.  (9.  2);  Reiff.,   1.   c,  n.  176;  Schmalzg.,  1.  c, 
n.  204. 

*  Ap.  Bouix,  1.  c,  p.  79.  2  L.  c,  p.  79-84.  ■•  N.  5857. 

*  Cap.  16,  19,  21,  24,  de  Ace.  (v.  i).  *  Supra,  n.  957. 


in  Criminal  Causes.  159 

divulge  the  crime,  would  cause  great  scandal,  and  weaken 
the  faith  of  many ;  and  it  is  evidently  better  to  permit  the 
secret  sin  of  one,  than  to  cause,  by  its  divulgation,  the  spiri- 
tual ruin  of  many,'  From  all  that  has  been  said,  it  is  clear 
that  the  safest  policy  is  to  proceed  only  upon  previous  com- 
mon report. 

961.  Q.  Is  previous  common  fame  or  defamation  neces- 
sary for  a  general  inquiry  ? 

A.  We  premise:  i.  It  is  certain  that  bishops  can  and 
should,  in  their  episcopal  visitation  of  the  diocese,  make  a 
general  inquiry  into  offences — v.g.,  whether  in  the  parjsh 
visited  any  crimes  are  being  committed/  2.  The  general 
inquiry  may  be  either  paternal  or  judicial.  Bishops  usually 
make  it  in  a  paternal  manner. 

962.  We  now  answer:  i.  No  previous  common  fame  or 
defamation  is  required  when  the  inquiry  is  paternal.  When 
it  is  judicial  there  are  two  opinions.  Some  deny  universally. 
Others — e'.^.,  Bouix'  and  Craisson^ — distinguish  thus:  When 
it  is  altogether  general,  referring  to  the  whole  diocese, — v.g., 
when  the  bishop  inquires  whether  any  crimes  are  committed 
in  the  diocese, — no  previous  public  report  is  needed.  But 
it  is  requisite,  when  the  inquiry  is  somewhat  particular — v.g., 
when  the  bishop  examines  whether  crimes  are  committed 
in  a  certain  monastery  or  even  parish.  Because  such  inves- 
tigation would  injure  the  reputation  of  such  place. 

963.  Observe  that  the  judge  or  superior  (we  speak 
always  of  the  ecclesiastical  judge  or  superior)  should 
inform  those  whom  he  interrogates  whether  he  proceeds  ju- 
dicially or  only  paternally.  The  reason  is  that  witnesses  are 
not  only  not  bound,  but  are  forbidden  to  reveal  the  occult 
author  of  a  crime,  where  the  judge  proceeds  judicially 
against  him,  unless  there  is  previous  defamation.     And  this 


'  Bouix,  1.  c,  p.  83  '  Cone.  Trid.,  sess.  24,  c.  3,  de  Ref. 

^  L.  c,  p.  89.  ••  Man.,  n.  5853. 


i6o  Of  the  Oi'dhiary  Canonical  Trial 

holds  even  where  the  crime  can  be  fully  proved  by  wit- 
nesses, and  even  when  the  judge  interrogates  under  oath. 
The  witnesses  can  answer  with  a  mental  restriction  that  they 
do  not  know.  Much  less  is  the  occult  guilty  party,  when 
interrogated  by  the  judge,  obliged  to  confess,  so  long  as  the 
crime  is  occult.  For  the  judge  has  no  right  to  interrogate 
in  regard  to  occult  cases.  This  holds  true  except  {a)  where 
the  crime  has  not  yet  been  committed,  biit  is  about  to  be 
committed,  [b)  or  where  it  is  being  continued,  (f)  or  where  a 
grave  injury  results  to  a  third  party,  which  cannot  be  easily 
averted  except  by  judicial  intervention.  In  these  cases 
the  person  interrogated  should  reveal  the  delinquent,  even 
though  his  crime  be  altogether  occult,  and  he  has  not  been 
defamed,  in  order  that  the  judge  may  thus  be  enabled  to 
prevent  the  sin  or  injury  by  opportune  i"emedies.' 

964.  ^.  Is  previous  common  fame  or  defamation  neces- 
sary also  for  a  mixed  judicial  inquiry  ? 

A.  It  is,  when  the  inquiry  is  special  with  regard  to  the 
author  of  the  crime,  and  general  as  to  the  crime — iKg.,  when 
it  is  made  thus :  Has  Titius  committed  a  crime  ?  Hence 
the  Roman  or  civil  law,  followed  by  the  Church,  says:  "  Qui 
quaestionem  habiturus  est,  non  debet  specialiter  interrogare 
an  Lucius  Titius  homicidium  fecerit ;  sed  generaliter,  quis 
id  fecerit."  "  It  is  not,  when  the  inquiry  is  general  as  to  the 
person,  and  special  only  as  to  the  crime — v.g.,  when  it  is 
made  thus  :  Who  has  committed  this  murder  ? ' 

965.  Nature  and  conditions  of  common  fame,  luJicrc  it  is 
indispensable  prior  to  a  judicial  ijiqiiiry. — So  far,  we  have  seen 
when  previous  defamation  or  common  fame  is  required, 
when  not.  Let  us  now  go  a  step  farther  and  ask  :  What  kind 
of  common  fame  is  necessary  in  the  cases  where  it  is  required 
previous  to  a  trial  by  inquiry  ?    The   law  of  the  Church 


'  Schtnalzg,,  1.  c,  n.  195.  '  L.  I  fif.  de  Quaest.,  §  21  (48.  i8). 

•  Reiff.,  1.  c,  n.  169,  170. 


in  Criminal  Causes.  i6i 

expressly  requires,  i.  That  the  common  fame  or  report 
shall  originate  with  persons  of  probity  and  worthy  of  belief, 
not  with  malicious  persons  or  slanderers.  2.  That  it  shall 
reach  the  ears  of  the  superior,  not  merely  once,  but  often.' 
3.  It  must,  moreover,  be  spread,  not  only  among  a  few  per- 
sons, but  the  greater  part  of  the  neighborhood  or  community. 
Thus  the  Glossa^  says :  "  Quia  fama  loci  requiritur,  non  fama 
aliquorum."  4.  When  the  ecclesiastical  judge  proceeds  at 
the  instance  of  a  third  party,  whether  it  be  a  private  indi- 
vidual or  the  public  prosecuting  official,  the  existence  of 
defamation  or  common  fame  must  be,  moreover,  juridically 
established.  This  conclusion,  however,  is  not  admitted  by 
all  canonists.  For,  as  we  have  seen,"  there  are  some  who 
hold  that  no  defamation,  and,  a  fortiori,  no  canonical  proof  of 
its  existence,  is  required,  when  the  judge  proceeds  at  the 
instance  of  another  party.  When  the  judge  proceeds  ex 
niero  officio,  previous  common  fame  must  indeed  exist,  and 
the  judge  must,  moreover,  be  certain  of  its  existence ;  but 
he  need  not,  at  least  absolutely  speaking,  formally  and  juridi- 
cally establish  this  fact — i.e.,  the  existence  of  the  report." 
We  say,  absolutely  speaking;  for  the  person  against  whom  the 
inquiry  is  directed  may  deny  that  there  is  defamation,  or  at 
least  that  it  has  the  requisite  conditions ;  and  he  may,  if  the 
judge  decides  against  him  on  this  point,  whether  expressly 
or  tacitly,  appeal  to  the  higher  superior ;  and  then  the  judge 
a  quo  is  obliged  to  establish  the  existence  of  the  report,  fully 
and  juridically,  before  the  judge  ad  quern. ^  Hence  it  is  safer 
for  the  judge,  in  all  cases,  even  when  he  proceeds  ex  mero 
officio,  to  have  the  existence  of  the  defamation  juridically 
established. 

966.  Here  it  may   be   asked :    How  is  the  existence  of 
common  fame  proved?     It  is  established,  like  all  other  ex- 

'  Cap.  Qualiter  24,  de  Ace.  (v.  i).  "^  In  cap.  21,  de  Ace,  v.  dicta  paucorum. 

'  Supra,  n.  959.  ■»  Reiff.,  1.  c,  n.  192;  Bouix,  1.  c,  p.  91. 

*  Reiff.,  1.  c,  n.  193;  Miinchen,  1.  c,  vol.  i.,  p.  493,  n.  8. 


1 62  Of  the  Ordinary  Canonical  Trial 

ternal  facts,  chiefly  by  the  testimony  of  witnesses.  This 
testimony  should  go  to  show,  not  precisely  that  the  crime 
was  committed  by  such  a  one,  but  that  many  persons  or 
the  greater  part  of  the  community  say  or  believe  that  such 
a  crime  was  committed  by  such  a  person.  Next,  the  wit- 
nesses, upon  being  asked,  should  give  the  names  of  the  per- 
sons among  whom  the  common  report  exists,  so  that  the 
judge  may  know  whether  they  are  worthy  of  belief  or  not." 

967.  In  order  that  the  ecclesiastical  judge  may  be  able  to 
proceed  to  a  special  judicial  inquiry,  besides  previous  com- 
mon fame  or  defamation,  it  is  necessary  that  the  body  of  the 
crime  {corpus  delicti^  or  the  main  criminal  act  be  established. 
In  other  words,  before  the  judge  proceeds  to  inquire  who 
has  committed  the  crime,  he  must  assure  himself  that  the 
crime  itself  has  been  really  committed."  Thus  the  Roman 
law,  followed  by  the  Church,  says :  "  Item  illud  sciendum 
est,  nisi  constet  aliquem  esse  occisum,  non  haberi  de  familia 
quaestionem.  Liquere  igitur  debet,  scelere  interem.ptum, 
ut  Senatus-consulto  locus  sit." '  And  this  holds  true  even 
where  the  accused  has  confessed  his  guilt.* 

968.  But  how  is  the  body  of  the  crime  or  the  corpus  de- 
licti to  be  established  ?  We  must  distinguish  between  those 
crimes  which  3xe  facti permancntis — that  is,  those  which  leave 
some  traces  behind;  v.g.,  murder,  incendiarism — and  those 
which  are  facti  trafiseuntis,  that  is,  those  which  leave  no 
vestige  behind  ;  v.g.,  blasphemy,  contumely,  slander,  magic, 
etc.  When  the  crime  is  facti  permanentis,  the  judge  must 
generally  obtain  a  clear  and  undoubted  knowledge  of  the 
corpus  delicti — namely,  by  ocular  inspection.  In  other  words, 
the  judge  must  either  go  in  person,  or  send  somebody  else 
for  him,  to  the  place  where  the  crime  was  committed,  and 
view  the  corpus  delicti, — v.g.,  the  murdered  body,  the  ruins 

'  Glossa  in  cap.  24,  de  Ace,  v.  ad  inquirendum;  Miinchen,  1.  c. 

*  Bouix,  1.  c,  p.  100. 

'  L.  I  ff.  de  Scto.  Silan.,  §  24.  *  Schmalzg.,  1.  c,  n.  212, 


in  Criminal  Causes.  163 

of  the  burned  house,  etc.  If  the  crime  is  facti  transeuntis,  it 
is  sufficient  for  the  judge  to  base  his  knowledge  of  the  corpus 
delicti  upon  presumptions  and  conjectures.' 

969.  As  will  be  seen,  the  steps  of  the  trial  or  process  by- 
way of  inquiry,  which  have  been  thus  far  considered,  pre- 
cede and  lead  to  the  main  or  real  trial  or  inquiry  itself,  and 
may  therefore  be  termed  the  preliminary  investigation  or 
trial.'  The  object  of  this  preliminary  investigation  is  to  see 
whether  there  is  sufficient  evidence  to  warrant  the  judge  to 
proceed  against  the  alleged  offender.  Its  character,  there- 
fore, is  the  same  as  that  of  preliminary  examinations,  which 
take  place  in  our  secular  courts.  In  fact,  as  will  be  easily 
seen,  the  formalities  of  trials  in  vogue  in  secular  courts,  all 
the  world  over,  have  many  things  in  common  with  those  of 
ecclesiastical  courts. 

970.  The  main  part  of  the  trial  by  inquiry,  or  the  real  trial 
properly  speaking. — When  the  preliminary  investigation  ^as 
been  closed  or  finished,  and  the  judge  finds  that  the  facts 
disclosed  warrant  him  to  proceed  against  the  accused,  the 
real  trial  or  the  main  proceedings  begin.  The  various  steps 
or  stages  of  these  proceedings  will  be  fully  described  further 
on,  when  we  come  to  discuss  them  ex  professo,  in  their  proper 
places.'  Here  we  shall  but  indicate  them.  The  first  step 
to  be  taken  is  the  citation  of  the  accused.  Next,  the  latter 
must  be  shown  the  charges  made  against  him,  the  deposi- 
tions and  also  names  of  the  witnesses,  so  that  he  mav  be 
able  fully  to  defend  himself.*  His  defence  must  be  admitted  ; 
and  he  must  be  given  the  fullest  latitude  in  defending  him- 
self. We  observe,  however,  that  the  names  (not  the  deposi- 
tions) of  the  witnesses  may  be  withheld  where  it  is  feared 
that,  if  made  known,  the  witnesses  will  suffer  grave  harm  or 
injury,  and  be  deterred  from  testifying,  or  at  least  testifying 


*  lb.,  n.  216.  '  Cf.  Stremler,  1.  c,  p.  159.  '  Infra,  n.  982  sq. 

*  Cap.  24.  de  Ace;  Reiff.,  1.  c,  n.  208;   Schmalzg.,  1.  c,  n.  214. 


164  Of  the  Ordinary  Canonical  Trial 

correctly.'  We  observe,  moreover,  that  the  charges — which, 
as  we  have  just  seen,  must  be  communicated  to  the  defend- 
ant— must  be  specific,  not  merely  general,  and  must  there- 
fore give  the  circumstances  or  details  of  the  crime — 
namely,  the  kind  or  species,  the  place  and  time  when  and 
where  the  crime  was  committed.  The  reason  is,  that  the 
knowledge  of  these  particulars  enables  the  accused  to  de- 
fend himself  better.^ 

971.  Are  all  these  formalities  obligatory  sub  poena  nul- 
litatis  of  the  process  or  trial  ?  They  are.  Hence,  if  any  of 
them  are  omitted, — v.g.,  if  there  is  no  previous  defama- 
tion, where  it  is  required  for  the  trial,  or  if  the  citation  is 
omitted,  or  even  where  the  order  in  which  these  formalities 
follow  each  other  is  inverted, — the  trial  or  proceedings  are 
null  and  void  ;  provided  the  accused,  being  present,  pro- 
tests or  excepts."  We  say,  provided  the  accused,  etc.;  for  if 
the  accused  is  present,  and  does  not  protest,  the  proceedings 
are  valid,  even  though  some  of  the  requisite  formalities  are 
omitted.* 

972.  Q.  Are  the  above  formalities  obligatory,  sub  poena 
nutlitatis,  also  in  proceedings  before  Commissions  of  Investi- 
gation in  the  United  States  ? 

A.  We  premise  :  The  formalities  here  meant  are  the  ascer- 
taining of  the  corp7is  delicti,  the  existence  and  proofs  of  de- 
famation or  common  fame,  the  citation  of  the  defendant ; 
the  informing  him,  in  detail,  of  the  charges  and  specifications, 
as  well  as  of  the  testimony  of  the  witnesses,  and  all  other 
evidence  ;  the  hearing  of  his  defence. 

973.  We  noAv  answer:  They  are,  at  least  so  far  as  their 
substance  is  concerned.  For  they  are  either  expressly  or 
impliedly  prescribed  by  the  S.  C.  de  P.  F.,  in  its  Instruction 
of  July  20,  1878.  establishing  Commissions  of  Investigation 

'  Reiff.,  1.  c,  n.  209;  Schmalzg.,  1.  c,  n.  214.  '  Reiflf.,  1.  c,  n.  210. 

'  Cap.  17  et  22,  de  Ace.  (v.  i).  *  Cap.  i,  2,  de  Ace,  in  6°  (v.  i). 


in  Criminal  Causes.  165 

in  the  United  States,  and  are,  moreover,  enjoined  by  the  very 
law  of  nature,  in  every  judicial  proceeding,  formal  or  infor- 
mal. As  regards  the  law  of  nature,  we  have  already  seen 
that  it  requires  these  substantial  formalities.  So  far  as  the 
above  Instruction  is  concerned,  it  enacts  expressly  that  the 
accused  shall  be  cited  ; '  that  the  charges  shall  be  fully  and 
clearly  communicated  to  him ;  ^  that  he  shall  be  given  full 
power  to  defend  himself ; '  that,  consequently  (by  implica- 
tion), the  testimony,  as  also  the  names  of  the  witnesses,  and 
all  other  evidence,  be  made  known  to  him.  Moreover,  by 
implication,  the  Instruction  prescribes  that  what  has  been 
said  concerning  the  necessity  of  previous  defamation  or  com- 
mon fame  be  observed.  We  said,  at  least  as  far  as  their 
substance  is  concerned ;  for  the  mariJier  in  which  these  essential 
formalities  are  to  be  observed  according  to  the  sacred  canons 
need  not  always  be  carried  out  with  us,  sub  poena  tiullitatis, 
though  it  is  laudable  to  adhere  even  to  this  manner,  as 
far  as  practicable.  The  reason  is,  that  while  the  proceedings 
before  our  Commissions  of  Investigation  are  indeed  judicial 
in  their  character,*  they  do  not  constitute  canonical  trials,  in 
the  strict  sense  of  the  term.^  We  added,  though  it  is  laudable  ; 
for  the  proceedings  before  our  Commissions  clearly  partake 
of  the  nature,  and  are  in  fact  modelled  on  the  plan,  of 
canonical  trials  by  way  of  inquiry. 

974.  Note. — It  is  worthy  of  note,  that  publicity  is  ex- 
cluded from  ecclesiastical  trials,  even  though  solemn  or 
formal.  Hence,  as  Stremler'  very  justly  remarks,  it  is  a 
deplorable  error,  caused  by  ignorance  of  the  sacred  canons, 
to  pretend  that  in  order  to  avoid  scandal  it  is  necessary  to 
suppress  or  omit  the  formalities  of  canonical  trials,  and  to 
adjudicate  all  criminal  causes  of  ecclesiastics  extrajudicially 
or  ex  informata  conscientia — i.e.,  without  any  judicial  formali- 

'  Instr.  cit.,  §  4,  Per  Ikteras.  *  lb.  ^  lb.,  §  7,  Deinde. 

*  S.  C.  de  P.  F.,  Ad  Dubia,  §  iii.,  Ex  quihus. 

*  S.  C.  de  P.  F.,  Instr.  cit.,  §  5,  Coftvenieniibus.  *  L.  c,  p.  162. 


1 66  Of  the  Ordinary  Canonical  Trial 

ties  whatever.  For,  as  the  same  author  continues,  it  is  very 
possible  or  feasible  to  give  an  accused  ecclesiastic  a  regular 
or  formal  canonical  trial  without  any  publicity,  in  such  man- 
ner that  no  one,  save  the  parties  directly  concerned, — namely, 
the  judge,  the  accused,  and  the  witnesses, — need  know  of  it. 
Of  course  this  applies  also  to  our  trials  as  conducted  before 
Commissions  of  Investigation,  as  is,  moreover,  clearly  indi- 
cated by  the  S.  C.  de  P.  F.  itself,  in  its  above  Instruction, 
when  it  directs  that  the  bishop  shall  admonish  the  members 
of  these  Commissions  (and  a  fortiori,  all  others  who  may  be 
present  at  the  proceedings)  to  keep  silence  in  regard  to  what 
they  may  hear  in  the  course  of  the  proceedings.'  This 
privacy  or  secrecy  of  the  proceedings  is  evidently  prescribed 
chiefly  for  the  benefit  of  the  accused,  lest  his  reputation 
should  otherwise  be  unnecessarily  injured. 

Art.  IV. 

Mode  of  Procedure  by  way  of  Exception  {Norma  Procedendi  per 
viam  Exceptionis). 

975.  The  right  of  the  defendant  to  take  exceptions — that 
is,  to  protest  against  or  object  to  the  judge,  accuser,  wit- 
nesses, or  the  proceedings  themselves,  whether  in  whole  or 
in  part — being  a  legitimate  means  of  defence,  forms  part  of 
ecclesiastical  trials.  Now  from  such  objections  or  challenges 
or  protests,  made  in  court  or  during  the  trial,  a  new  cause 
or  issue  arises  incidentally,  which  must  be  adjudicated  ac- 
cording to  the  prescriptions  of  the  sacred  canons.'  Now,  as 
we  shall  see,  it  may  happen  that  the  exception  of  the  de- 
fendant is  based  upon  a  criminal  charge  made  then  and  there 
against  the  judge,  informer,  witnesses,  etc.  Thus  it  is  evi- 
dent that  crimes  may  be  brought  into  court  by  way  of 
exception.     The   latter   is   therefore   one   of  the   means   of 

'  Instr.  cit.,  §  5,  ConvenienHbus.  '  Bouix,  1.  c,  p.  107. 


in  Criminal  Causes.  167 

instituting  or  beginning  criminal  trials  in  ecclesiastical 
courts.'  It  seems,  therefore,  proper,  that  we  should  here 
briefly  explain  the  mode  of  procedure  by  way  of  exception. 

976.  By  an  exception  we  here  mean  an  objection  or 
protest  made  by  the  defendant  against  the  judge,  the  ac- 
cuser, denouncer,  informer,  or  witnesses,  for  the  purpose  of 
disabling  these  parties  from  acting  respectively  as  judge, 
accuser,  or  witnesses,  or  even  (where  a  crime  is  objected 
against  them)  for  the  purpose  of  having  them  punished.* 
From  this  definition  it  will  be  seen  that  there  are  two  kinds 
of  exceptions  :  i,  criminal  {cxceptio  criminalist — namely,  when 
a  crime  is  objected ;  2,  civil  {cxceptio  civilis),  when  a  dis- 
ability is  objected,  which  is  not  culpable.  We  shall  here 
speak  only  of  criminal  exceptions,  and  that  only  so  far  as 
they  give  rise  to  a  new  though  incidental  cause  or  trial, 
since  we  shall  treat  of  exceptions,  especially  civil,  more  fully 
later  on. 

977.  A  criminal  exception  can  be  made  in  two  ways : 
civilly  and  criminally.  It  is  made  civilly  when  a  crime  is 
objected  to  the  judge,  opponent,  witness,  etc.,  not  in  order 
that  he  may  be  punished  according  to  canon  law,  but  merely 
that  he  may  be  excluded  from  acting  as  judge,  witness,  etc., 
in  the  case.  It  is  made  criminally,  on  the  other  hand,  when 
the  accused  or  defendant  objects  a  crime, — v.g.,  to  a  witness 
or  opponent, — not  simply  for  the  purpose  of  having  its 
author  rejected  as  a  witness,  etc.,  but,  moreover,  in  order 
that  punishment  may  be  inflicted  upon  him  for  his  crime 
by  judicial  sentence.  To  this  kind  of  exception  another 
bears  a  strong  resemblance — namely,  that  by  which  an  eccle- 
siastic, who  has  been  appointed  to  a  prelatic,  episcopal,  or 
other  ecclesiastical  dignity,  or  to  an  ecclesiastical  benefice 
or  office,  is  charged  with  or  accused  of  a  crime  which,  by 
the  sacred  canons,  is  an  obstacle  to  his  consecration,  ordina- 

'  Reiff.,  1.  c,  n.  233.  *  lb.,  n.  234. 


1 68  Of  the  Ordinary  Canonical  Trial 

tion,  or  installation.'  This  exception  is  also  called  a  quasi- 
exception.  For  an  exception  proper  is  one  which  is  made 
only  by  a  defendant,  whereas  this  exception  can  be  advanced 
also  by  others.'' 

978.  Q.  What  should  the  ecclesiastical  judge  do  when  the 
defendant  makes  a  criminal  objection  or  exception  civilly? 

A.  He  should,  before  all  else,  that  is,  before  proceeding 
with  the  trial  of  the  main  cause,  adjudicate  upon — i.e.,  hear 
and  decide — the  exception.^  And  if  he  finds  it  sustained  by 
sufficient  evidence,  he  should  exclude  the  parties  against 
whom  the  exception  was  taken  from  acting  as  plaintiffs, 
witnesses,  etc.  But  if  the  exception  is  not  fully  established 
by  the  defendant,  upon  whom  rests  the  burden  of  proof,  as 
he  becomes  the  plaintiff,  for  the  purpose  of  the  exception, 
the  judge  should,  by  an  interlocutory  decision,  decree,  or 
resolution,  reject  it  as  frivolous  and  frustrative,  and  there- 
upon continue  with  the  trial  of  the  main  issue,  as  though  no 
exception  had  been  taken.* 

979.  Can  a  person — v.g.,  the  plaintiff,  opponent,  or  wit- 
ness, against  whom  the  defendant  has  entered  a  criminal 
exception  or  protest  civilly,  and  established  it  by  full  proof 
— be  punished  by  the  judge  for  the  crime  thus  proved  ?  He 
cannot,  generally  speaking.  He  can  only  be  rejected  either 
as  plaintiff  or  witness,  or  as  acting  in  another  capacity. 
The  reason  is  that  the  judge  should,  in  proceeding,  and 
in  pronouncing  sentence,  adapt  himself,  or  conform  to,  or 
comply  with,  the  intention  or  petition  of  the  party  making 
the  complaint  or  exception.  Thus  the  cap.  31,  de  Sim.," 
expressly  says:  "Juxta  judicii  formam,  sententiae  quoque 
forma  dictetur."  And  the  Glossal  commenting  on  these 
words,  remarks :  "  Et  ita  judex"  (ecclesiasticus)  "  semper 
secundum  finem,  ad  quem  quis  agit,  formabit  sententiam." 

'  Schmalzg.,  1.  c,  n.  243.  *  Bouix,  1.  c,  p.  109. 

"  Cap.  I,  de  Ord.  cogn.  (ii.  10);  ib.  Glossa,  v.  Cognoscendum. 

*  Bouix,  1.  c,  p.  no.  *  L.  5,  t.  3,  Decret.  ^  lb.,  v.  Formam. 


in  Criminal  Canses.  169 

Now  the  end  of  a  criminal  protest  or  exception  made  civilly 
is  simply  to  repel  the  party  protested  against  from  acting 
as  witness,  etc.,  but  not  to  punish  him.  We  said,  generally 
speaking;  since  there  are  a  few  exceptions  to  this  rule,  for 
which  see  Schmalzgrueber,  1.  c,  n.  246. 

980.  Q.  How  should  the  judge  (ecclesiastical)  proceed 
when  a  defendant  makes  a  criminal  objection  criminally,  not 
merely  civilly  ? 

A.  As  such  an  exception  partakes  of  the  nature  of  a 
formal  criminal  accusation  or  charge,  the  proceedings  should 
be  nearly  the  same  as  those  of  criminal  Xr'vdX's,  per viam  accusa- 
tionis,  already  described.'  If  the  person  making  the  excep- 
tion succeeds  in  proving  it,  the  opponent  or  plaintiff,  witness 
or  other  party,  against  whom  it  has  been  proven  should  not 
only  be  rejected  as  plaintiff  or  witness,  etc.,  but,  moreover, 
punished  according  to  the  sacred  canons,  as  though  he  had 
been  convicted  on  a  separate  trial.  However,  if  the  accused 
who  has  made  the  exception  fails  to  sustain  it,  he  does  not 
incur  ihQ poena  talionis,  or  retaliatory  punishment,  since  con- 
sideration is  shown  him  on  account  of  the  provocation  under 
which  he  acts.''  Note. — As  we  shall  see  further  on,  criminal 
exceptions,  whether  made  civilly  or  criminally,  can  be  made 
also  in  trials  or  proceedings  before  Commissions  of  Investi- 
gation in  the  United  States. 

981.  Many  canonists  here  add  a  fifth  kind  of  ecclesiastical 
trial — namely,  that  which  is  followed  when  the  crime  is 
notorious  {^processus  ex  notorio).  But,  as  we  shall  treat  of  this 
procedure  later  on,  we  shall  not  dwell  on  it  here  further  than 
to  remark,  that  while  no  trial  need  be  given  the  offender 
where  his  crime  is  notorious,  yet  certain  judicial  formalities 
are  required  to  ascertain  whether  the  crime  is  really  no- 
torious. 

*  Bouix,  1.  c,  p.  III.  *Schmalzg.,  1.  c,  n.  250. 


170  Of  the  Oj^dtnary  Canonical  Trial 


SECTION   II. 

The  different  Stages  and  Formalities  of  Ordinary  or  Solemn  Criminal 
Trials  (Processus  Criminalis  Ordinarius)  in  Ecclesiastical  Courts — 
Formalities  of  Ecclesiastical  Trials  in  the  United  States. 

982.  Having  shown  how  criminal  causes  are  introduced 
into  the  ecclesiastical  court,  or  how  ecclesiastical  criminal 
trials  are  begun  also  in  the  United  States,  we  shall  now 
describe  the  various  stages  or  formalities  of  the  trial  itself. 
Here  it  is  well  to  repeat,  that  unless  the  trial  is  conducted 
according  to  the  forms  prescribed  by  the  law  of  the  Church 
(which  law,  for  criminal  and  disciplinary  causes  of  eccle- 
siastics in  the  United  States,  is  the  Instruction  of  the  S.  C. 
de  P.  F.  of  July  20,  1878,  establishing  Commissions  of  Inves- 
tigation '),  the  proceedings  are  null  and  void."  It  is  there- 
fore exceedingly  important  for  all  concerned  to  know  these 
requisite  formalities.  Moreover,  it  is  evident  that  unless 
judicial  proceedings  are  conducted  with  order  and  method, 
they  will  end  in  confusion,  rather  than  a  knowledge  or 
demonstration  of  the  facts  in  the  case. 

983.  Trials  may  be  divided  into  three  parts  or  principal 
stages.  The  first  runs  from  the  beginning  or  opening  of  the 
case  to  the  contestation  or  defendant's  plea,  which  is  called 
litis  cofttestatio  exclusively,  and  may  be  termed  the  prelimi- 
nary trial,  of  which  we  have  already  spoken ; "  the  second, 
from  the  plea  to  the  definitive  sentence ;  the  third,  from  the 
final  sentence  to  the  end  of  the  cause,  or  the  execution  of  the 
sentence.*  Accordingly,  we  shall  divide  this  section  into 
three  articles.  We  speak  here  solely  of  criminal  trials  in 
the   ecclesiastical   courts.      As,  however,  civil  trials  in  the 

'  Supra,  n.  972. 

*  Supra,  n.  971;  L.  4,  C.  de   Sent,  et  interl.  omn.  jud.  (vii.  45);  cap.    22,  de 
Rescript,  (i.  3);  ib.  Glossa,  v.  Juris  ordine. 

^  Supra,  n.  969.  *  Soglia,  1.  iv.  cap,  3,  §  30,  ed.  Vecch. 


ill  Ci'iminal  Causes.  1 7 1 

ecclesiastical  courts — of  which  we  shall  treat  later — have 
many  things  in  common  with  criminal  ecclesiastical  trials,  we 
shall,  in  the  course  of  the  present  section,  explain  as  occasion 
offers,  certain  questions  which  refer  peculiarly  to  civil  trials 
in  ecclesiastical  courts.  This  will  conduce  to  greater  clear- 
ness, and  at  the  same  time  obviate  the  necessity  of  repeating 
the  same  remarks  when  we  come  to  treat  of  ecclesiastical 
civil  trials.  For  similar  reasons,  we  shall  also  set  forth 
in  this  section  the  peculiar  formalities  of  trials  in  our  coun- 
try before  Commissions  of  Investigation,  as  occasions  present 
themselves,  though  we  are  fully  aware,  as  we  have  already 
several  times  stated,  that  these  trials  are  not  strictly  canonical 
trials.  It  is  plain  that  by  showing  where  our  peculiar  eccle- 
siastical trial  differs  from,  and  where  it  agrees  with,  the 
canonical  trial  proper,  we  shall  better  illustrate  the  nature 
and  characteristics  of  both. 


Art.   I. 

The  Steps  or  Stages  of  formal  Criminal  Trials,  from  the  be- 
ginning or  opening  of  the  Cause  to  the  Plea  exclusively — 
Application  of  the  Principles  here  laid  down  to  Trials  in  the 
United  States  before  Commissions  of  Investigation. 

984.  The  first  step  in  the  trial  usually  consists  in  tender- 
ing to  the  judge  the  written  accusation,  called  libellus,  or 
bill  of  complaint,  by  which  both  the  judge  and  the  accused 
are  informed  of  the  nature  of  the  charges  made.  Next  the 
judge  issues  the  citation  summoning  the  defendant  to  appear 
and  answer  the  charges  preferred  against  him.  If  the  latter 
wilfully  disobeys  the  citation,  he  becomes  guilty  of  contempt. 
If  he  obeys  and  appears  in  court,  he  may,  before  giving  a 
direct  answer  to  the  charge,  make  various  protests  or  excep- 
tions, either  against  the  action  itself,  or  the  mode  of  proce- 
dure, or  the  judge,  or  witnesses,  etc.;  or  he  may  even  make  a 


172  Of  the  Ordinary  Canonical  Trial 

counter-charge  against  the  plaintiff.  Hence,  in  this  article, 
we  shall  treat,  under  separate  headings,  of  the  "  libellus,"  the 
citation,  contumacy  and  its  effects,  exceptions — especially 
those  made  against  the  judge,  and  counter-charges. 

§   I.    On   tendering    to   the   Ecclesiastical  Judge   the    written 
Criminal  Charge  {de  Libelli  Oblatione). 

985.  If  the  procedure  is  by  way  of  accusation  {processus 
per  viam  accusationis),  the  accuser  should,  before  all  else, 
hand  to  the  judge  the  written  accusation  or  bill  of  com- 
plaint {libellus  acciisationis).^  This  is  the  first  step  in  the  trial 
by  way  of  accusation.  In  like  manner,  if  the  procedure  is  by 
way  of  denunciation  {processus  per  viam  denuntiationis)  or  by 
way  of  inquiry  {per  viam  inquisitionis  ad  ijistantiam  alicujus) 
instituted  at  the  request  of  a  third  party,  the  first  act  is  the 
presenting  to  the  judge  the  written  denunciation,  or  denun- 
ciatory bill  of  complaint  {libellus  demintiatoriiis),  signed  by  the 
person  making  the  denunciation,  or  demanding  the  inquiry, 
whether  he  be  a  private  person  or  a  public  official — v.g.,  the 
bishop's  promoter  or  prosecuting  official.  To  this  denun- 
ciatory bill  of  charges  should  be  appended  a  list  of  the  wit- 
nesses or  documents  by  which  the  charge  is  to  be  sustained." 
If  the  procedure  is  by  way  of  inquiry,  conducted  by  the  judge 
altogether  ex  officio, — that  is,  not  at  the  instance  of  a  third 
party  {per  viam  merae  inquisitionis), — the  first  step  is  that  the 
judge  should  assure  himself  of  the  existence  of  public  fame,  in 
the  manner  laid  down  above,^  Before  proceeding  to  the  cita- 
tion, therefore,  the  judge  should  examine  witnesses  and  gather 
all  the  information  he  can,  to  ascertain  the  existence  of  defa- 
mation. Where  he  proceeds  to  a  special  judicial  inquiry, 
he  must  moreover,  according  to  many  canonists,  juridically 
verify  the  existence  of  common  fame  after  he  has  received 
the    denunciatory  bill."      Here  we    remark,  that  when  the 

'  Supra,  n.  935  sq.    ^  Supra,  n.  945.    ^  Supra,  n.  965  (4).     ■*  lb. 


in  Criminal  Causes.  1 73 

judg-e  has  received  the  bill  of  accusation  or  denunciation, 
and  finds  it  properly  drawn  up,  he  is  bound  to  proceed 
against  the  alleged  offender.  For  he  is  the  public  official 
appointed  for  the  purpose  of  rendering  justice  to  all.' 
Finally,  where  the  procedure  is  by  way  of  exception,  the 
person  excepting  must,  before  anything  else,  give  the  judge 
the  bill  of  exceptions,  or  of  the  charges  on  which  the  excep- 
tion is  based. 

986.  From  what  has  been  said,  it  is  plain  that  the  handing- 
to  the  judge  the  written  charge  or  bill  of  charges  is  the  first 
step,  except  when  the  judge  proceeds  ex  inero  officio.  But 
as  a  matter  of  fact,  the  trial  by  inquiry  is  rarely  if  ever  in- 
stituted, except  at  the  instance  of  a  third  party — namely,  of  a 
private  individual,  or  the  diocesan  prosecuting  official,  who 
draws  up,  and  tenders  the  bill  to  the  judge,  in  the  name  of 
the  diocese.^  Hence  it  may  be  said  that,  as  a  rule,  the  first 
step  of  a  canonical  trial  is  the  tendering  of  the  bill  to  the 
judge. 

987.  In  our  secular  courts,  all  over  the  United  States,  no 
offender  can  -be  put  on  trial  on  a  criminal  charge  until  a  bill 
of  indictment  has  been  found  against  him  by  the  grand  jury. 
The  language  of  the  Federal  Constitution  is,  "  that  no  person 
shall  be  held  to  answer  for  a  capital  or  otherwise  infamous 
crime,  unless  on  a  presentment  or  indictment  of  a  grand 
jury."  The  various  State  constitutions  include  all  criminal 
charges.  The  number  of  the  members  of  a  grand  jury  is 
usually  fifteen,  and  generally  twelve  out  of  the  fifteen 
must  concur,  in  order  to  sustain  an  indictment.  As  to  the 
weight  of  evidence  required,  the  rule  is,  that  they  ought  not 
to  find  a  bill  unless  the  evidence  be  such  as,  if  uncontra- 
dicted, Avould  induce  them  on  the  trial  to  convict.  The  trial 
itself  takes  place  before  the  petit  jury," 

988.  What  then  is  meant  by  the  libellus  or  bill  of  com- 

'  Bouix,  1.  c,  p.  139.  «  Bouix,  1.  c,  p.  141.  »  Walker^  p.  7,13  sq.. 


174  Of  the  Ordinary  Canonical  Trial 

plaint,  in  ecclesiastical  causes?  It  is  a  short  writing  or 
written  statement,  setting  forth  clearly  the  demand  of  the 
plaintiff  or  prosecution,  and  the  reasons  therefor.'  It  is 
divided  {a)  into  simple  or  summary  {libellus  simplex  or  siivi- 
marius),  or  that  which  states  the  case  in  a  summary  manner ; 
{b)  articulate,  specific,  or  itemized  {libclhis  articulatus),  or  that 
which  gives  the  complaint  or  charge  under  distinct  and 
separate  heads  or  specifications  or  counts ;  ic)  civil  and 
criminal,  according  as  the  cause  is  civil  or  criminal. 

989.  Q.  How  should  the  bill  of  complaint  or  libellus  be 
drawn  up  ? 

A.  It  should  consist  of  three  parts:  the  statement  of  the 
facts  in  the  case ;  the  reasons  for  the  demand ;  the  conclu- 
sion, or  statement  of  what  is  asked  of  the  judge.  The  first 
part — the  narrative  of  the  facts  in  the  case — should  chiefly 
give  [ci)  the  name  of  the  judge  before  whom  the  case  is  to  be 
•tried  ;  {b)  the  name  of  the  plaintiff,  {c)  and  of  the  defendant ; 
(</)  the  facts  in  the  case,  with  the  necessary  circumstances  or 
•details ;  and  if  the  cause  is  a  civil  one,  what  and  how  much 
is  due  or  asked.  {/)  In  a  criminal  bill,  besides  the  above 
particulars,  the  place  where,  the  year  and  month  when,  the 
crime  was  committed  should  be  given ;  otherwise  the  pro- 
cess or  trial  is  null  and  void,  even  though  the  opposing  party 
•does  not  protest.'  We  say,  criminal  bill ;  for  in  a  civil  bill 
the  designation  of  the  time  and  place  is  not  generally  re- 
quired. How  the  second  part  of  the  libellus — that  is,  the 
reasons  or  grounds  on  which  the  complaint  is  based — is  to 
be  formulated,  see  Schmalzgrueber,  1.  c,  n.  3.  How  should 
the  third  part  or  the  conclusion  of  the  bill  {conclusio  libelli) 
be  worded?  At  the  end  of  the  bill  the  plaintiff  should 
clearly  state  or  specify  what  he  demands  of  the  defendant, 
and  consequently  what  he  wishes  the  judge  to  adjudicate  or 
-award  to  him.     This  part  of  the  bill  is  of  great  importance. 

*  Supra  n.  935;  Schmalzg.,  1.  2,  t.  3,  n.  I.       ^  L.  libellorutn  3  ff.  de  Ace.  (48.  2). 


in  Criminal  Causes.  1 75 

For,  as  we  have  seen,  the  judge,  in  civil  causes,  cannot 
award  more  to  the  plaintiff  than  is  asked  by  him.'  This  con- 
clusion is  necessary  only  in  civil,  not  in  criminal  causes.  For 
in  the  latter  the  law  itself  decides  what  penalty  is  to  be  in- 
flicted, and  hence  it  does  not  become  the  plaintiff  to  suggest 
what  penalty  the  judge  should  infiict.  Here  we  remark,  by 
the  way,  that  when  the  judge  has  received  the  bill  of  com- 
plaint he  should  carefully  examine  it,  and  thus  inform  him- 
self of  the  nature  of  the  case.  He  should,  moreover,  com- 
municate it  to  the  defendant,  and  either  give  him  a  copy  or 
allow  him  to  make  a  copy.  Finally,  he  should  give  the  latter 
sufficient  time  to  prepare  to  plead,  or  reply  as  to  whether 
he  will  contest  the  case  or  not — say  about  twenty  days.'' 

990.  Q.  Is  a  bill  of  complaint  necessary  in  all  ecclesias- 
tical trials  or  judicial  proceedings? 

A.  It  is,  generally  speaking,  necessary,  and  that  on  pain 
of  nullity  of  the  proceedings,  in  all  formal  or  solemn  canoni- 
cal trials,  civil  and  criminal;  so  much  so,  that  it  cannot  be 
remitted  even  by  the  parties  themselves.'  We  say,  in  all 
formal  trials  ;  for  in  extraordinary  trials — that  is,  where  the 
judge  proceeds  ex  notorio,  or  ex  inforinata  conscientia,  or  sum- 
marily, especially  where  the  cause  is  of  little  importance — 
no  libellus  is  needed  ;  *  since  in  this  case  it  is  sufficient  that 
the  demand  of  the  plaintiff  be  made  verbally  before  the 
judge,  and  be  immediately  thereupon  inserted  among  the 
acts  of  the  cause,  so  that  if  the  defendant  wishes  he  may 
have  a  copy  of  it.^  We  said,  moreover,  generally  speaking  ; 
for  even  in  ordinary  or  formal  canonical  trials  the  bill  of 
complaint  may  sometimes  be  dispensed  with.  Thus,  as  we 
have  already  seen,  it  is  not  required  in  formal  or  ordinary 
trials  per  viain  merae  inquisitionis — i.e.,  when  the  judge  pro- 

'  Bouix,  1.  c,  p.  148. 

=  Auth.  offeratur,  C.  de  Lit.  cont.  (3.  9);  Schmalzg.,  1.  c,  n.  10. 

3  Cap.  I,  de  Lib.  oblat.  (ii.  3);  ib.  Glossa,  v.  Libellum. 

*  Clem,  saepe  2,  de  V.  S.  (v.  11).         Mb.,  §  Verum  quia;  Schmalzg.,  1.  c.  n.  11. 


176  Of  the  Ordinary  Canonical  Trial 

ceeds  altogether  ex  inotu  propria  or  officio^     Several  other 
exceptions  are  given  by  Schmalzgrueber,  1.  c. 

991.  Can  the  bill  of  complaint  be  changed  or  amended 
once  it  has  been  given  to  the  judge  ?  We  observe,  the 
bill  is  said  to  be  changed  when  something  is  altered  in  it 
which  pertains  to  its  substance.  It  is  amended  whfen 
some  defect  or  obscurity  is  corrected,  or  something  added 
to  or  taken  from  it  which  does  not  affect  its  substance, 
in  such  manner  that  neither  the  complaint  itself  or  the 
demand  made,  nor  the  grounds  upon  which  it  is  based,  are 
changed.  Now  canonists  agree  that  the  bill  may  be  amended 
during  the  trial  until  the  final  sentence  is  to  be  pronounced, 
on  condition,  however,  that  the  expenses  incurred  by  the 
defendant,  by  reason  of  the  defective  bill,  be  refunded  to 
him.  A  person  can  amend  his  bill  in  various  ways — v g.,  by 
explaining  what  is  obscure ;  by  correcting  slight  mistakes  of 
form,  such  as  names,  dates,  places ;  by  adding  those  things 
which  have  occurred  after  the  litis  contestation  On  the  other 
hand,  it  is  not  allowed,  either  in  civil  or  criminal  causes,  to 
change — i.e.,  substantially  to  alter — the  bill  after  the  litis 
contestatio. 

§  2.    Visitation  or  Inspection  of  the  Corpus  Delicti. 

992.  The  visitation  of  the  corpus  delicti  is  the  next  step. 
Where  the  crime,  as  we  have  seen,  \s  fact  i  permanent  is,  the 
judge  or  other  person  deputed  by  him  must  personally  visit 
anjd  view  the  physical  traces  of  the  crime — v.g.,  the  ruins  of 
a  burned  house.'  Observation. — The  steps  thus  far  described — 
namely,  the  filing  of  the  bill,  the  ascertaining  or  proving  of 
defamation,  the  visitation  of  the  body  of  the  crime,  etc. — con- 
stitute what  is  called  the  preliminary  trial  or  investigation 
{^processus  informativus).  They  have  all  been  sufficiently 
explained  already.     For  the  sake  of  greater  clearness,  how- 

'  Schmalzg.,  1.  c,  n.  12.  *  Schmalzg.,  1.  c,  n.  13.  ^  Supra,  n.  967. 


in  Criminal  Causes.  177 

ever,  we  shall  here  briefly  recapitulate  what  has  been  said 
regarding  this  preliminary  trial  or  investigation.  First,  the 
object  of  this  preliminary  trial  is  either  to  verify  or  ascertain 
the  existence  of  common  fame,  or  to  see  whether  there  exists 
against  the  accused  at  least  imperfect  proof  of  guilt  or 
probatio  semiplena,  so  as  to  warrant  the  judge  to  proceed  to 
the  citation.'  Second,  no  preliminary  investigation  is  needed 
when  the  judge  proceeds  by  way  of  accusation  (for  the  rea- 
son given  below),  which,  however,  is  now  rarely  the  case. 
Third,  where  the  existence  of  public  report  has  been  juridi- 
cally proved  or  otherwise  sufficiently  ascertained,  and  con- 
sequently where  there  has  been  a  preliminary  investigation 
in  regard  to  the  existence  of  public  opinion,  the  judge  need 
not  further  inquire  whether  there  exists  also  incomplete 
proof  of  guilt.  For,  by  the  law  of  the  Church,  the  existence 
of  common  fame  is  of  itself  a  half  or  imperfect  proof.  We 
say,  ficed  not;  for  in  practice  if  is  advisable  for  the  judge 
always  to  see  whether  besides  t\\Q  fa7na  there  is  also  at  least 
some  other  imperfect  proof  of  guilt.  Fourth,  where  no  pre- 
vious common  fame  is  required,  the  judge  must  institute  a 
preliminary  investigation  to  find  oht  whether  there  is  at  least 
imperfect  proof  of  guilt  or  grave  suspicion.  For,  as  was 
already  observed,  a  person  who  is  cited  as  a  defendant  in  a 
criminal  cause  becomes  thereby  suspected  of  guilt  among  the 
people.  Now  the  law  of  nature  itself  dictates  that  no  one 
shall  be  thus  treated  without  a  sufficient  cause — i.e.,  without 
sufficient  grounds  for  believing  him  guilty. 

993.  This  reasoning  evidently  applies  also  to  criminal 
proceedings,  and  a  pari  to  disciplinary  proceedings  partak- 
ing of  the  nature  of  criminal,  before  Commissions  of  Investi- 
gation in  the  United  States.  This  is,  moreover,  confirmed 
by  the  fact  that  our  trials  before  Commissions  of  Investiga- 
tion partake  of  the  nature  of  a  canonical  trial  or  process  by 

'  Craisson,  Man.,  n.  5886. 


I  yS  Of  the  Ordinary  Canonical  Trial 

inquiry,  though  thev  are  not  strictly  the  same.  From  what 
has  been  said,  it  follows  that,  practically  speaking,  the  pre- 
liminary trial  or  investigation,  both  as  to  the  common  report 
and  sufficient  proof  of  guilt,  should  in  most  cases,  even  with 
us,  precede  the  citation  of  the  accused.  It  is  desirable  to 
make  this  investigation  as  full  as  possible.' 

§  3.  Citation  of  the  Accused — As  made  also  in  the  United  States 

{Citatio  Rei). 

994.  The  next  step  is  the  citation  of  the  accused.  When 
at  the  end  of  the  preliminary  trial  or  investigation  the  judge 
finds  there  is  not  at  least  an  imperfect  proof  of  guilt,  he 
should  command  that  ulterior  proceedings  be  stopped.  But 
if  he  finds  there  is  full  proof,  or  at  least  imperfect  proof,  he 
should  proceed  to  the  citation  of  the  accused."  No  prelimi- 
nary investigation,  as  we  have  seen,  is  needed  when  the  pro- 
cedure is  by  way  of  accusation.  For  in  the  latter  case  it  is 
the  duty  of  the  accuser,  not  of  the  judge,  to  see  whether 
there  is  sufficient  ground  to  proceed  to  the  citation. 

995.  In  the  United  States,  besides  the  requisite  prelimi- 
nary investigation,  the  Commission  of  Investigation  shall  not 
be  convened,  and  the  citation  shall  not  issue,  save  in  the  fol- 
lowing contingency  :  "  Ad  commissionem  investigationis  non 
recurratur,  nisi  prius  clare  et  praecise  exposita  ab  ^piscopo 
causa  ad  dejectionem  finalem  movente,  ipse  rector  missiona- 
rius  malit  rem  ad  consilium  deferri  quam  se  a  munere  et 
officio  sponte  dimittere."  '  The  condition  here  required  for 
the  citation  applies  not  only  in  cases  where  there  is  question 
of  dismissal  from  office,  but  also  where  {a)  a  censure, 
whether  of  suspension,  excommunication  or  interdict,  or  {b) 
a  grave  disciplinary  correction,  is  to  be  imposed.*     Hence, 

'  Bouix,  1.  c,  vol.  ii.,  p.  154.  *  Bouix,  1.  c,  p.  157. 

*  Instr.  S.  C.  de  P.  F.,  20  Julii,  1878,  §  i  Ad  commissionem. 

♦  lb.,  §  In  causis  cognoscendis.    Cf.  S.  C.  de  P.  F.,  Ad  Dubia,  1 1,  Instructio. 


in  Criminal  Causes.  179 

before  the  bishop  proceeds  to  convene  the  Commission, 
prior  to  and  for  the  purpose  of  inflicting  dismissal,  or  a  cen- 
sure or  a  grave  disciplinary  correction,  he  should  clearly, 
distinctly,  and  concisely  inform  the  accused  of  the  charges 
or  allegations  pending  against  him,  and  leave  him  the  alter- 
native of  voluntarily  accepting  the  bishop's  proposals  or 
terms,  or  of  being  tried  before  the  Commission.  Out  of  the 
above  cases — that  is,  in  purely  civil  causes  falling  under  the 
ecclesiastical  forum — the  rule  in  question  need  not  be  neces- 
sarily observed,  though  even  then  it  is  laudable  to  follow  it. 
For  the  S.  C.  de  P.  F.,  in  its  Instruction,  already  quoted,  of 
July  20,  1878,  plainly  intimates  its  desire  that  all,  even  civil, 
causes  be  brought  before  the  Commission,  before  the  bishop 
passes  sentence  on  them.  Thus  the  words  of  the  above 
Instruction  "  Commissionis  ita  constitutae  princeps  erit 
ofiicium  criminales  atque  disciplinares  .  .  .  causas  .  .  . 
cognoscere,"  '  and  "  In  causis  cognoscendis,  iis  praesertim, 
in  quibus  de  rectore  .  .  amovendo  agatur  .  .  Commissio 
hanc  sequetur  agendi  rationem"  "" — seem  manifestly  to  con- 
tain an  implied  recommendation  that  the  office  and  duties 
of  the  Commission  be  extended  to  other  cases  besides  crimi- 
nal and  disciplinary.^ 

996.  We  now  proceed  to  the  citation.  The  citation  is  the 
legitimate  act  whereby  a  person,  by  command  of  the  judge, 
is  called  into  court  for  trial.  Thus  the  Roman  laws,  from 
which  the  definition  is  derived,  says  :  "  In  jus  vocare  est 
juris  experiundi  causa  vocare."*  It  is  divided  chiefly:  i, 
into  verbal  and  real ;  2,  simple  and  peremptory.  The  cita- 
tion is  verbal  {citatio  verbalis)  when  the  judge  sends  a  mes- 
senger or  official  (in  our  secular  courts,  sheriff  or  constable) 
to  the  accused,  to  notify  him,  either  orally  or  in  writing, 
that  upon  a  certain  day  he  is  to  appear  in  court,  or  before 

'  Instr.  cit.,  |  Commissionis.  '  lb.,  §  In  causis.  ^  Supra,  n.  740. 

*  L.  I  fif.  de  In  jus.  voc.  (ii.  4);  Schmalzg.,  1.  ii.,  t.  3,  n.  16. 


i8o  Of  the  Ordinary  Canonical  Trial 

the  judges  for  trial.  The  real  citation  {citatio  rcalis)  is  that 
by  which  the  person  cited  is  apprehended  or  arrested.  The 
verbal  citation,  which  can  also  be  sent  by  mail  or  letter, 
instead  of  by  a  messenger  of  the  court,  is  subdivided  into 
private  and  public.  It  is  private  when  it  is  served  upon  or 
sent  to  the  defendant  in  a  private  manner  and  without  any 
publicity.  It  is  public  when  made  in  a  public  manner  or 
before  the  whole  community — namely,  by  public  announce- 
ment or  notification  posted  in  a  public  place  or  inserted  in 
a  newspaper.  The  citation,  with  us,  as  prescribed  in  the 
Instruction  of  the  S.  C.  de  P.  F.,  dated  July  20,  1878,  is 
private,  being  sent  by  letter,  delivered  or  served  through  the 
mail,  or  by  messenger  of  the  bishop's  court.'  However,  we 
think — v.g,,  where  a  defendant  conceals  himself — a  public 
citation  could  be  made  also  in  this  country,  provided,  as  we 
shall  see,  there  is  a  real  necessity  for  so  doing. 

997.  Next,  the  citation  is  simple  or  peremptory.  It  is 
simple  [citatio  simplex)  when  the  judge  simply  commands  the 
accused  to  appear  on  a  certain  day,  without  threatening  to 
refuse  the  defendant  any  further  time  or  delay  in  case  of  his 
non-appearance.  It  is  peremptory  {citatio peremptorid)  when 
it  is  worded  in  such  a  manner  as  to  impose  the  obligation  of 
appearing  on  a  certain  da}^  without  fail,  and  without  further 
citation.  The  simple  citation  does  not  render  the  person 
contumacious  if  he  fails  to  appear,  save  when  it  is  repeated 
three  times.  This  is  the  common  law  of  the  Church.  In 
the  United  States,  by  virtue  of  the  Instruction  of  the  S.  C. 
de  P.  F.,  dated  July  20,  1878,  the  simple  citation,  when  made 
twice  and  disobeyed,  constitutes  contumacy  or  contempt  of 
court."  But  if  the  citation  is  peremptory,  the  person  cited 
becomes  contumacious  or  guilty  of  contempt  if  he  fails  to  ap- 
pear on  the  day  fixed,  and  that  without  any  further  citation, 
the  oae  peremptory  citation  being  sufficient.     However,  in 

'  Instr.  cit.,  §  .;,  Per  litteras.  *  Instr.  cit.,  §  8,  Si  contingat. 


in  Criminal  Causes.  i8i 

order  that  the  citation,  when  made  but  once,  may  be  per- 
emptory, it  must,  I,  expressly  say  that  it  is  made  peremp- 
torily, or  something  equivalent  to  this — v.g.,  that  the  citation 
is  one  for  all ;  that  if  the  person  cited  fails  to  appear  at  the 
time  specified  the  judge  will  nevertheless  proceed  with  the 
case  and  pronounce  sentence  after  due  investigation  of  the 
cause.  Thus  the  Roman  law,  adopted  by  the  Church, 
says :  "  In  peremptorio  autem,  comminatur  is,  qui  edictum 
dedit,  etiam  absente  parte  diversa  cognitiiriun  se,  ct  pronuncia- 
turumy^  2.  It  must,  moreover,  grant  the  person  cited  as 
much  time  for  appearing  as  should  intervene  between  the 
three  simple  citations — namely,  at  least  thirty  days.  For 
between  each  of  the  three  simple  citations  a  period  of  ten 
days  should  elapse.''  By  custom,  however,  this  term^  may 
be  prolonged  or  shortened,  but  cannot  be  abridged  in  such 
manner  as  to  leave  the  party  cited  insufficient  time.  And  if 
the  time  fixed  is  too  short,  the  person  cited  can  appeal ;  and 
the  higher  superior  to  whom  the  appeal  is  made,  having 
heard  the  complaint  and  decided  it  to  be  just,  should,  annul 
whatever  may  have  been  done  by  the  inferior  judge  pending 
the  appeal.'  The  judge  has  the  right  to  issue  a  peremptory 
citation  in  the  place  of  three  (with  us,  two)  simple  ones, 
whenever,  in  his  judgment,  the  nature  of  the  case,  the  cir- 
cumstances of  persons,  places,  and  time,  warrant  it.* 

998.  As  a  rule,  the  citation  should  be  made  privatel}^ ;  for 
it  were  evidently  wrong  to  injure  the  reputation  of  the  de- 
fendant by  a  public  citation,  unless  there  is  sufficient  reason 
for  the  publicity.  We  say,  as  a  rtde ;  because,  as  we  have 
just  noted,  the  citation  may  be  made  in  a  public  manner, — 
that  is,  by  public  notice, — either  posted  in  a  public  place,  as 
the  doors  of  the  cathedral,  or  published  in  a  newspaper, 

'  L.  71  ff.  de  Judic.  (v.  i);  Schmalzg.,  1.  c,  n.  16  et  19. 

»L.  68,  69,  70  ff.  dejud.  (v.  i). 

*  Cap.  I,  de  Dilat.  (ii.  8);  cap.  24,  de  Off.  et  pot.  jud.  del.  (i.  29). 

"  L.  72  ff.  (v.  I). 


1 82  Of  the  Ordinary  Canonical  Trial 

where  there  are  sufficient  reasons  for  so  doing — that  is, 
where  it  is  necessary  ;  in  other  words,  where  the  accused 
could  not  be  cited  in  any  other  manner' — v.g.,  where  his 
residence  is  not  accessible  to  the  messenger  bearing  the  cita- 
tion with  safety  ;  or  where  he  lives  out  of  the  territory  of 
the  judge  issuing  the  citation ;  where  he  maliciously  hides 
himself,  or  hinders  the  citation  from  reaching  him,  even  by 
letter.  Observe  that  the  right  to  issue  a  public  citation — 
i.e.,  by  public  notice — belongs  only  to  ordinary  judges  and 
delegates  of  the  Holy  See.^  Moreover,  before  a  public  cita- 
tion can  be  issued,  a  summary  investigation  or  trial  should 
take  place,  in  order  to  prove  that  there  is  a  sufficient  justifica- 
tion for  making  the  citation  publicly.  In  other  words,  it 
must  be  shown,  upon  this  investigation,  that  the  accused  has 
fled,  or  is  hiding,  or  is  hindering  the  citation  from  reaching 
him,°  etc. 

999.  We  have  just  said  that  the  citation  may  be  made  by 
public  notice  or  in  a  public  manner  when  the  accused  is  out 
of  the  territory  of  the  judge  issuing  the  citation.  This  needs 
some  explanation.  The  citation  of  a  person  who  is  outside 
the  territory  of  the  judge  citing,  can  take  place  in  three  ways: 
First,  by  a  messenger  (and  a  fortiori  by  letter,  especially 
when  registered)  sent  by  the  judge  issuing  the  citation. 
This  mode  of  citing  is  valid,  as  it  is  not  an  act  of  jurisdiction 
in  another  judge's  territory,  but  merely  the  execution  of  a 
jurisdictional  act.  Second,  by  the  judge  of  the  place  where 
the  accused  is  at  the  time.  This  second  way  of  citing  is 
carried  out  as  follows :  The  judge  issuing  the  citation  writes 
to  the  judge  of  the  place  where  the  accused  is,  and  requests 
him  to  execute  or  serve  the  citation  on  the  accused,  through 
his  own  officials.*     Third,  by  a  notification,  posted  in  the 

'  Ex  Clem,  i,  de  Jud.  (ii.  i);  Extrav.  Rem  non  novam,  de  dol.  et  cont.; 
Reiff.,  1.  2,  t.  3,  n.  76.  *  Schmalzg.,  1.  c,  n.  18.  ^  lb. 

*  Cf.  cap.  Romana  i,  §  3  Contrahentes,  de  For,  comp.,  in  6°  (ii.  2);  Bouix, 
L  c,  p.  161. 


in  Criminal  Causes.  183 

neighborhood  of  the  place  where  the  accused  is  at  the  time. 
Circumstances  must  determine  in  which  of  the  first  two 
ways  the  citation  is  to  be  made.  But  it  should  not  take 
place  in  the  third  way — namely,  publicly — unless  it  cannot 
be  made  in  any  other  manner.' 

1000.  Necessity  of  citation. — Generally,  the  citation  of  a 
person  absent  is  so  necessary  that  its  omission  invalidates, 
ipso  jure,  every  other  juridical  act  or  proceeding  in  the  case." 
This  applies  not  only  to  ordinary  or  formal  canonical  trials, 
but  also  to  summary  or  informal.^  It  holds  in  the  United 
States "  as  well  as  elsewhere.  Nay,  not  even  the  sovereign 
can  dispense  with  the  citation.  For  it  pertains  to  and  is 
part  of  the  defence,  and  is  consequently  guaranteed  by  the 
law  of  nature  itself,  since  nobody  should  be  condemned 
without  having  had  a  hearing.^  We  say,  generally ;  there 
being  some  exceptions.  They  are  chiefly:  i.  Where  the 
crime  is  so  notorious  that  no  defence  whatever  is  possible.* 
Yet,  practically  speaking,  as  we  show  elsewhere  in  this 
volume,  it  is  now  scarcely  advisable  to  proceed,  even  in 
notorious  causes,  without  a  trial  preceded  by  due  citation. 
2.  Where  the  accused,  knowing  that  he  is  about  to  be  tried, 
appears  before  the  judge  without  being  cited,  and  answers 
to  the  charge — i.e.,  pleads  in  the  case.  For  by  this  volun- 
tary appearance  in  court  he  tacitly  acquiesces  in  the  omis- 
sion of  the  citation.  We  say  secondly,  of  a  person  absent  ; 
since,  if  the  person  to  be  cited  is  present  in  court,  whether 
fortuitously  or  otherwise,  and  declares  himself  willing  and 
ready  to  go  on,  without  any  formal  citation,  the  latter  is 
evidently   not   required,  on   the   grounds  just   now  stated, 

^  Schmalzg.,  1.  c,  n.  23. 

*  Can.  2.  4,  C.  3,  Q.  9;  Clem.  Pastoralis  2,  de  Sent,  et  re  jud.  (ii.  10). 
3  Reiff.,  1.  2.,  t.  3,  n.  67. 

*  Cf.  Instr.  S.  C.  de  P.  F.,  20  Jul.,  1878,  §  4,  Per  litteras. 
^  Reiff.,  1.  c,  n.  68;  Schmalzg.,  1.  c,  n.  15. 

^  Can.  Manifesta  15,  C.  2,  Q.  1;  cap.  cum  Olim  12,  de  Sent.  (ii.  2G) 


184  Of  the  Ordinary  Canonical  Trial 

according  to  the  maxim:  "Volenti  non  fit  injuria.^  These 
principles  apply,  of  course,  also  to  the  citation  in  the  United 
States  as  prescribed  in  the  Instruction  of  the  S.  C.  de  P.  F., 
July  20,  1878. 

looi.  Contents  or  tenor  of  the  citation. — The  citation,  in 
order  to  be  lawful  and  valid,  also  with  us,  must  generally 
state,  I,  the  name  and  surname  of  the  judge  issuing  the  cita- 
tion ; '  2,  of  the  accused,  or  person  to  be  cited  ;  ^  3,  of  the 
plaintiff  or  the  party  at  whose  request  the  citation  is  issued. 
The  object  of  this  is  to  enable  the  accused  to  know  {a)  who 
is  his  opponent,  and  thus  to  prepare  better  for  his  defence, 
and  also  {b)  whether  the  citation  is  issued  by  the  judge  of  his 
own  accord — ex  motu  proprio — or  at  the  instance  of  a  third 
party.  For  in  private  causes,  or  those  which  concern  pri- 
vate utility, — i.e.,  the  interest  of  private  persons  only, — the 
judge  cannot  validly  issue  a  citation,  save  at  the  instance  of 
a  third  party.^  We  say,  in  private  causes ;  for  in  matters 
which  affect  the  public  welfare  or  good  of  the  Church,  and 
where  he  proceeds  ex  officio,  the  ecclesiastical  judge  can  cite 
without  being  requested  to  do  so  by  a  third  party.* 

1002.  4.  The  cause  for  which  the  citation  is  issued,  and 
that  in  criminal  and  disciplinary  as  well  as  civil  causes.  The 
object  of  this  is  to  inform  the  accused  of  the  charges  or 
nature  of  the  case,  so  that  he  may  deliberate  what  to  do,  and 
come  prepared  to  defend  himself.^  Many  canonists  hold  it 
is  sufficient  to  express  this  cause  in  a  general  way ;  yet,  as 
Schmalzgrueber*  observes,  it  is  more  advisable  to  state  the 
charges  or  cause  in  a  clear  and  determinate  and  specific 
manner.  Hence,  also,  it  is  very  advisable  for  the  judge  to 
enclose  in  the  citation  a  copy  of  the  charges,  or  bill  of  com- 
plaint {libellus),  if  there  is  any,  instead  of  waiting  until  the 
defendant  appears  in  court  on  the  day  fixed  by  the  citation, 

'  Ex  L.  2  ff.  Si  quis  in  jus  vocat.  (ii.  5).  *  Ex  cap.  34  et  36,  de  Rescrip.  (i.  3). 
3  Ex  cap.  19,  de  For  comp.  *  Reiff.,  1.  ii.,  t.  3,  n.  59;  Schmalzg.,  1.  c,  n.  20  (4). 
*  Can.  Si  primates  4,  C.  5,  Q.  2.  «  L.  c.  (6°). 


in  Criminal  Causes.  185 

to  communicate  the  charges,  or  bill  of  complaint  to  him. 
For  in  the  latter  case,  a  new  delay  will  have  to  be  granted 
the  defendant  to  enable  him  to  prepare  his  defence,  while  in 
the  former  case  this  delay  need  not  be  given.' 

1003.  As  will  be  seen,  it  is  in  accordance  with  these  prin- 
ciples that  the  S.  C.  de  P.  F.,  in  its  Instruction  of  July  20, 
1878,  determining  the  mode  of  procedure  or  conducting 
trials,  in  the  United  States,  in  criminal  and  disciplinary 
causes  of  ecclesiastics,  enacts  ;  "  Per  litteras  etiam  rectorem 
missionarium,  de  quo  agitur,  ad  locum  et  diem  constitutum 
ad  Consilium  habendum  advocet,  exponens,  nisi  priidentia 
vetat,  iiti  in  casu  criminis  occulti,  causam  ad  dejectionem  moven- 
tem  per  extensujH,  xnonQnsqne.  ipsum  rectorem  ut  responsum 
suis  rationibus  suffultum  ad  ea  praeparet,  quae  in  causae  ex- 
positione  vel  jam  antea  oretenus,  vel  nunc  in  scriptis  relata 
fuerint."  ^ 

1004.  5,  The  place  where  the  trial  or  proceedings  are  to 
take  place.  6.  Finally,  the  day  or  time  for  appearing  in 
court.  This  time  must  be  suitable  or  convenient  for  the 
accused.^ 

1005.  What  else  is  required  for  the  validity  of  the  citation  ? 
I.  That  it  be  issued  by  a  judge  having  authority  to  do  so. 
However,  the  judge  need  not  issue  it  personally,  but  may 
authorize  another  person  to  do  so  for  him."  2.  It  must  be 
properly  executed — that  is,  it  should  be  served  on  the  de- 
fendant in  person,  where  he  can  be  found. ^  If  he  cannot  be 
found,  it  should  either  be  served  on  his  procurator  or  agent, 
if  he  has  any,  or  be  left  at  the  house,  with  the  domestics  or 
members  of  his  family,  or  if  none  can  be  found,  with  neigh- 
bors ;  and  if  even  this  cannot  be  done,  the  citation  may  be 
affixed  to  the  house  where  the  defendant  generally  resides.* 
Finally,  if  he  maliciously  hides  himself,  or  in  any  way,  either 

'  Cap.  2,  de  Dilat. ;  Reiflf.,  1.  c,  n.  6i;  Schmalzg.,  1.  c,  n.  24. 

2  Instr.  cit.,  §  4,  Per  litteras.  ^  Rgiff.,  1.  c.,  n.  63.  *  lb.,  n.  49. 

^  Ex  cap.  3  et  10,  de  Dol.  et  cont.  (ii.  14).  «  Schmalzg.,  I.  c,  n.  25  (5°). 


1 86  Of  the  Ordinary  Canonical  Trial 

personally  or  through  others,  hinders  the  citation  from 
reaching  him,  or  if  he  has  no  fixed  residence  and  it  is  not 
known  where  he  can  be  found,  or  if  his  residence,  where  he 
has  any,  is  not  accessible  to  the  messenger  with  safety,  the 
citation,  as  was  seen,  can  be  made  by  public  notice  or  edict' 
This  public  citation,  however,  should  be  resorted  to  only  as 
a  last  means,  when  no  other  way  is  practicable. 

1006.  From  the  above,  it  is  plain  that  it  is  expedient  to 
execute — i.e.,  to  serve  or  deliver — the  citation  by  means  of  a 
messenger  appointed  for  that  purpose.  For  he  will  be  able, 
in  case  the  defendant  attempts  to  deny  having  received  the 
citation,  to  prove  its  delivery  or  execution.''  However, 
especially  where  custom  has  it,  it  may  be  executed — i.e.,  de- 
livered—by mail.'  In  the  United  States  it  certainly  may  be 
executed — i.e.,  served  or  sent  or  delivered  by  mail.  * 

1007.  3.  Finally,  the  fact  that  the  citation  has  been  exe- 
cuted— that  is,  served  on  the  defendant  in  one  or  other  of 
the  above  ways — should  also  with  us  be  carefully  recorded, 
and  that  on  pain  of  nullity  of  citation,  among  the  minutes  or 
acts  of  the  proceedings,  so  that  it  may  appear  that  the  cita- 
tion was  properly  made  ;  *  otherwise,  the  accused,  in  case  he 
refuses  to  appear,  cannot  be  adjudged  or  considered  con- 
tumacious. For  no  one  can  be  punished  as  contumacious 
unless  he  is  juridically  convicted  of  contumacy.  Now  a  per- 
son cannot  be  juridically  convicted  of  contumacy  unless  it  be 
juridicall}^ — i.e.,  by  the  minutes  or  acts  of  the  case — shown 
that  he  did,  at  least  presumptively,  receive  the  citation.* 
Hence  it  is  advisable  that,  in  the  United  States,  when  the 
citation  is  sent  by  mail,  it  be  sent  by  registered  mail :  as  thus 
a  proof  of  its  delivery  or  execution  is  at  once  had  in  the  re- 

■  Cap.  3,  cit.,  de  Dol.  et  cont.  (ii.  14);  Clem.  cap.  i.  (ii.  i). 

*  Schmalzg.,  1.  c,  n.  25.  ^  Craiss.,  n.  5899;  Prael.  S.  Sulp.,  n.  666. 
■•  Instr.  S.  C.  de  P.  F.,  20  Julii,  1S78,  §  4,  Per  litteras;  ib.,  §  8. 

*  Ex  cap.  II  (ii.  19);  Schmalzg.,  1.  c.  (7°).  *  Reiff.,  1.  c,  n.  51. 


in  Criminal  Causes.  187 

ceipt  which  the  post-office  officials  require  of  the  recipient 
and  forward  to  the  sender  of  the  letter. 

1008.  Q.  What  are  the  effects  of  a  citation  legitimately 
made  ? 

A.  Chiefly  these  :  i.  The  person  cited  is  bound  to  appear, 
unless  he  has  a  just  excuse.'  2.  The  litis  pcndentia  ensues — 
that  is,  pending  the  trial,  or  cause,  nothing  new  can  be  done. 
Thus  the  law  of  the-  Church  says:  "Cum  lite  pendente, 
nihil  debeat  innovari;  litem  quoad  hoc  pendere  censemus, 
postquam  .  .  .  citatio  emanavit."  *  The  Giossa,  comment- 
ing upon  the  word  innovari  in  this  passage,  gives  an  instance 
of  such  innovation:  "  Quod "  (scilicet  innovare)  "fieret,  si 
possessor  privaretur  possessione."  Hence,  once  the  citation 
has  been  issued  and  executed,  no  change  should  be  made  in 
the  status  of  the  person  on  trial  which  is  injurious  to  his  in- 
terests. Thus,  for  instance,  an  ecclesiastic  who  is  under  in- 
vestigation or  on  trial  should  not,  pending  the  investigation, 
be  deprived  of  his  office,  parish,  or  benefice.^  3.  It  extends 
the  jurisdiction  of  the  judge,  so  that  the  defendant  is  obliged 
to  appear  before  him  for  trial,  even  though  he  has  meanwhile 
become  subject  to  another  judge.*  4.  It  perpetuates  the 
jurisdiction  of  a  delegated  judge  in  such  manner  that  it  does 
not  expire  with  the  death  of  the  judge  delegating.  For, 
once  the  citation  has  been  issued,  the  matter  or  cause  is  no 
longer  a  res  intcgra — i.e.,  untouched.^ 

1009.  These  effects  follow  only  upon  a  citation  which  is 
legitimate  and  valid.  For  when  it  ^s  invalid  it  produces  no 
effect  whatever,  except  it  be  afterwards  made  valid — v.g.,  by 
the  appearance  of  the  person  cited,  as  was  seen,°  which  ap- 
pearance would  imply  a  tacit  consent  in  the  omission  of  the 
citation. 

'  Cap.  5  (i.  6).  -  Clem.  2  (ii.  5).  »  Schmalzg.,  1.  2,  t.  16,  n.  6. 

*  L.  19  f[.  de  Jurisd.  (ii.  i).         *  Cap.  20,  de  Off.  del.        «  Supra,  n.  1000, 


1 88  Of  the  Ordinary  Canonical  Trial 

%  4.   Contumacy  or  Contempt  of  Court  {De  Contiimacia). 

10 10.  By  contumacy  or  contempt  of  the  ecclesiastical 
court,  as  here  understood,  is  meant,  in  general,  any  act  of 
stubborn  or  obstinate  disobedience  to  the  judge.  We  say, 
stubborn,  etc.;  because  contumacy  does  not  consist  in  an  act  of 
simple  disobedience,  but  an  act  of  disobedience  coupled  with 
obstinacy  or  stubbornness,  and  therefore  implying  contempt 
of  the  authority  of  the  judge.  Hence,/^ri-r,  a  person  is  guilty 
of  contumacy  only  by  refusing  to  obey  the  commands  of  the 
judge  when  reiterated  or  given  peremptorily.  Accordingly, 
the  law  of  the  Church  is  that  the  simple  citation  must  be 
repeated  three  times  (in  the  United  States,  twice)  before  the 
party  who  is  cited  and  refuses  to  appear  can  be  adjudged 
guilty  of  contempt.'  This  disobedience  may  be  committed 
not  only  with  reference  to  the  citation — namely,  by  refusing 
to  appear  upon  a  due  citation ;  but,  in  general,  in  relation 
to  any  order  of  the  judge — namely,  by  any  act  of  disobedi- 
ence to  the  judge  or  court  (in  the  United  States,  also 
Commission  of  Investigation),  in  the  legitimate  exercise  of 
his  judicial  authority  during  any  part  of  the  trial,  investi- 
gation, or  judicial  proceedings.'' 

loii.  At  present  we  shall  confine  ourselves  chiefly  to 
that  contumacy  or  disobedience  which  consists  in  the  failure 
orrefusal  on  the  part  of  the  person  duly  cited  to  obey  the 
citation  and  appear  in  court  or  before  the  judge  on  the  day 
specified  in  the  citation.  This  contumacy  is  of  two  kinds : 
true  and  presumptive.  Contumacy  is  true  {contumacia  vera) 
when  the  citation  has  been  served  upon  the  defendant  in 
person,  so  that  there  can  be  no  doubt  of  its  having  reached 
him,'  or  (in  case  the  citation  has  not  been  delivered  to  him 
in  person)  when  it  is  otherwise  certain  that  the  citation  has 

'  Miinchen,  Canonical  Trials,  vol.  i.,  p.  227. 

'  Ex  cap.  3  et  6,  de  Dol.  et  cont.  (ii.  14);  Reiff.,  1.  2,  t.  14,  n.  45  sq. 

'  Reiff.,  1.  2,  t.  14,  n.  58  sq. 


in  Criminal  Causes.  189 

reached  him,  and  when,  notwithstanding  these  facts,  the  per- 
son cited  fails  to  appear  before  the  judge,  and  that  without 
any  sufficient  excuse.' 

1012.  Contumacy,  on  the  other  hand,  is  presumptive 
{contiimacia  ficta  sen  praesinnptd)  when  it  is  doubtful  whether 
the  citation  has  come  to  the  knowledge  of  the  person  sum- 
moned— na'mely,  when  the  citation  has  not  been  served  upon 
him  in  person  by  a  messenger,  but  was,  v.g.,  sent  by  mail 
(not  registered),  or  left  at  his  house,  or  made  by  public  edict 
or  notification.  In  this  case,  if  the  person  summoned  does 
not  appear  at  the  time  specified,  he  becomes  presumptively 
contumacious.  For  the  law  of  the  Church  violently  pre- 
sumes that  the  citation,  in  the  case,  has  certainly  become 
known  to  him.'' 

1013.  Causes  excusing  from  contumacy. — There  are  many 
causes  which  exempt  the  person  summoned  from  the  obliga- 
tion of  appearing  in  court,  and  consequently  also  from  con- 
tempt for  not  coming.  The  following  are  some  of  them : 
I.  Ill-health.  2.  Important  business  or  other  serious  occu- 
pations.^ 3.  Citation  to  a  higher  tribunal."  4.  Bad  v/eather." 
5.  Unsafety  of  the  place  to  which  the  party  is  cited.  6.  The 
want  of  an  advocate.*  That  these  and  similar  reasons  excuse 
from  contumacy  is  so  true,  that  if  the  judge  (we  speak  of  the 
ecclesiastical  judge)  pronounces  sentence  against  a  person 
who  is  prevented  from  appearing  by  a  legitimate  or  just 
excuse,  such  sentence  is  ipso  jure  null  and  void,  provided  the 
judge  was  at  the  time  aware  of  the  excuse.  But  if  he  was 
ignorant  of  it,  the  sentence  should  be  revoked,  and  the  party 
thus  condemned  reinstated  in  his  position  occupied  by  him 
before  the  sentence.' 

'  Ex  1.  53  ff.  de  Re  jud.  (42.  i). 

*  Extrav.  com.  cap.  un.  Rem  non  novam,  de  dol.  et  cont.  (ii.  3);  Schmalzj;. , 
1.  2,  t.  14,  n.  38. 

2  L.  53  ff.  de  Re  jud.  (42.  i).      *  L.  54  ff.  1.  c.     ^  L.  2  ff.  Si  quis  caut.  (ii.  11). 

*  Schmalzg.,  1.  c,  n.  42.  ■"  L.  6  et  7  ff.  de  In  inlejr.  rect.  (iv.  i). 


190  Of  the  Ordinary  Canonical  Trial 

1014.  Q.  What  are  the  effects  or  penalties  of  contumacy 
on  the  part  of  the  plaintiff,  and  what  is  the  mode  of  pro- 
cedure against  him  for  contempt  or  disobedience  ? 

A.  We  premise :  Not  merely  a  defendant  or  an  accused 
person,  but  also  a  plaintiff,  may  become  guilty  of  disobedi- 
ence or  contempt.  Now  a  plaintiff  may  be  guilty  of  con- 
tempt in  various  ways — v.g.,  if,  after  having  lodged  a  com- 
plaint before  the  judge,  he  nevertheless  refuses  to  appear 
and  prosecute  it,  though  commanded  to  do  so  by  the  judge. 
For  although  nobody  is  obliged  to  act  as  plaintiff  against  his 
Avill  before  he  has  made  an  accusation,  yet,  once  he  has  pre- 
ferred the  charge,  he  can  be  forced  to  prosecute  it,*  and  that 
on  pain  of  being  considered  and  punished  as  a  calumniator. 

1015.  We  now  answer:  If  the  plaintiff  does  not  appear 
at  the  proper  time, — i.e.,  on  the  day  fixed  in  the  citation  of 
the  defendant, — he  should  be  cited  in  the  same  manner  in 
which  the  defendant  is  cited.  If  he  does  not  appear  after 
the  first  or  second  simple  citation,  he  is  to  be  condemned  to 
pay  all  the  costs  of  the  trial,  and  also  of  the  defendant."  If 
he  fails  to  appear  after  the  third  citation,  the  judge  can,  if  the 
defendant  so  demands,  and  that  even  though  no  litis  contestatio 
has  taken  place,  go  on  with  and  try  the  cause,  in  the  absence 
and  to  the  detriment  of  the  plaintiff,  and  pronounce  final  sen- 
tence, in  accordance  with  the  evidence,  either  for  or  against 
the  plaintiff.  We  say,  and  to  the  detriment ;  for  it  is  evident 
that  this  absence  will  redound  to  the  injury  of  the  plaintiff, 
whose  interests  are  thus  not  properly  represented.  We  say 
moreover,  if  the  defendant  so  demands  ;  because  the  defendant 
may,  if  he  choose,  simply  demand  that  he  himself  be  defini- 
tively absolved,  on  the  strength  of  the  maxim  :  "  Actore 
non  probante,  reus  absolvitur." ' 

1016.  Q.  What  is  the  mode  of  procedure  against  a  de- 
fendant for  contumacy  ? 

'  Reiff.,  1.  c,  n.  80.        '  L.  79  ff.  de  Jud.  '  Schmalzg.,  1.  c,  n.  45. 


in  Criminal  Causes.  191 

A.  Some  canonists, — v.g.,  Engel,  whom  Bouix'  seems  to 
follow — assert  that  contumacy  on  the  part  of  a  defendant 
is  equivalent  to  juridical  confession  and  conviction  of  the 
crime  charged  ;  that,  consequently,  an  accused  who  is  in  con- 
tempt may  without  any  further  proof  or  trial  be  forthwith 
condemned  as  guilty  of  the  offence  of  which  he  stands 
accused.''  Against  these  canonists,  we  hold  it  as  certain  with 
Reiffenstuel,"  Schmalzgrueber,  Miinchen,*  and  others,  that 
neither  true  nor  presumptive  contumacy  is  tantamount  to  a 
full  proof  of  the  crime  or  to  2i  probatio  plena  delicti,  for  which 
a  person  is  on  trial.  Therefore,  neither  of  them  constitutes 
a  juridical  confession  or  conviction  of  guilt.  Consequently, 
contumacy,  whether  real  or  presumed,  does  not  dispense  with 
the  necessity  of  a  trial,  and  of  juridically  proving  the  guilt, 
but  has  among  other  effects  simply  this,  that  the  trial  or 
investigation  can  now  go  on,  in  the  absence  of  the  accused, 
just  as  though  he  were  present.  Thus  the  Roman  law,  as 
adopted  by  the  Church,  expressly  says:  "  Et  post  edictum 
peremptorium  impetratum,  cum  dies  ejus  supervenerit,  tunc 
absens  citari  debet :  et  sive  respondent,  sive  non  respondent, 
agetur  de  causa,  et  pronunciatur :  non  utique  secundum  prae- 
sentem,  sed  interdum  vel  absens,  si  bonam  causam  habuit, 
vincet." '  Schmalzgrueber  distinctly  says :  "■  Ob  solam 
enim  contumaciam  reus,  actore  non  probante,  causa  cadere 
non  debet."* 

1017.  Application  of  these  principles  to  the  United  States. — 
From  what  has  been  said,  it  is  manifest  that  if  with  us  a 
defendant  or  accused  person  is  guilty  of  contumacy,  true  or 
presumptive,  the  Commission  of  Investigation  cannot,  in  the 
absence  of  the  accused,  omit  the  hearing  of  the  cause  and 
dispense  with  the  trial,  and  forthwith  make  up  their  verdict 

'  De  Jud.,  vol.  ii.,  p.  558  sq.  '  Ap.  Miinchen,  1.  c,  vol.  i.,  p.  408,  note  4. 

*  L.  2,  t.  14,  n.  143,  145,  150,  151.  *  Can.  Trials,  vol.  i.,  p.  408,  409. 

*  L.  73  ff.  de  Jud.  (v.  i),  et  1.  13,  C.  de  Jud.  (iii.  i);  cap.  4,  de  Dol.  et  cont. 
(ii-  14).  •  L.  c,  n.  51,  54. 


192  Of  the  Ordinary  Canonical  Trial 

or  opinion  on  the  whole  case,  finding  the  accused  guilty,- 
without  an}^  trial,  of  the  charges  made  against  him,  solely  on 
the  ground  of  his  contumacy.  All  the  Commission  therefore 
can  do  is  to  examine  whether  the  accused  is  really 'guilty  of 
contumacy,  and,  if  so,  to  declare  him  guilty  of  it,  and  then  to 
proceed  with  the  trial  or  hearing  of  the  main  cause,  in  the 
absence  of  the  accused,  just  as  though  he  were  present,  and 
find  him  guilty  or  not  guilty,  according  to  the  evidence 
submitted  during  the  investigation. 

1018.  Observation. — Canonists  usually  observe  that  in 
ordinary  or  formal  canonical  trials,  whether  of  civil  or  crimi- 
nal causes,  the  ecclesiastical  judge  cannot  as  a  rule  go  on 
with  the  trial  and  pronounce  final  sentence,  in  the  case  of  a 
defendant  in  contempt,  except  when  the  contumacy  or  dis- 
obedience takes  place  after  the  litis  contestation  Tfie  reason 
is  that  in  formal  trials  no  witnesses  can  be  allowed  to  testify 
(the  same  holds  of  other  proofs),  and  consequently  no  trial 
can  take  place  and  no  final  sentence  passed,  until  after  the 
litis  contestatio  has  taken  place.  This  is  expressly  stated  in 
the  heading  of  the  sixth  title  of  the  second  book  of  the 
Decretals,  which  heading,  having  full  sense  by  itself,  has  the 
force  of  law.  The  words  are  :  '*  Ut  lite  non  contestata,  non 
procedatur  ad  testium  receptionem,  vel  ad  sententiam  defini- 
tivam."  We  have  said,  in  ordinary  or  formal  canonical  trials  ; 
for  when  the  proceedings  are  summary,  no  litis  contestatio  is 
needed,  as  we  shall  see,  and  therefore,  in  summary  trials,  the 
judge  can  go  on  with  the  trial,  even  if  the  contumacy  of  the 
accused  occurs  before  the  litis  contestatio?  We  have  said,  sec- 
ondly, as  a  rule  ;  for  in  some  cases  the  trial  can  go  on,  even 
though  it  is  an  ordinary  trial,  without  any  litis  contestatio. 
These  cases  are,  chiefly :  i.  Where  the  judge  proceeds  ex  mero 
officio,  and  not  at  the  instance  of  another,  per  viam  inquisi- 

'  Cap.  4,  de  Dol.  et  cont.  (ii.  14) ;  ib.  Glossa,  v.  Utpote. 
*  Cap.  8,  de  Dol.  (ii.  14);  Schmalzg.,  1.  2,  t.  6,  n.  2. 


in  Criminal  Causes.  193 

tionis,  to  a  special  judicial  inquiry  against  a  person  charged 
with  crime.'  2.  Where  there  is  question  of  criminal  charges 
against  ecclesiastics,  especially  when  in  charge  of  souls. 
For  there  is,  in  such  cases,  evident  danger  to  souls,  in  delay. 
Schmalzgrueber,^  however,  adds  that  where  there  is  ques- 
tion of  depriving  ecclesiastics  of  their  benefices,  offices,  or 
pastoral  charge,  the  order  to  be  followed  is  this :  First,  the 
defendant  in  contempt  should  be  punished  for  his  contempt 
— v.g.,  by  excommunication.  Secondly,  however,  the  trial 
or  hearing  of  the  cause  should  be  suspended  for  one  year. 
3.  If  after  the  lapse  of  one  year,  during  which  the  defendant 
has  been  ur.der  excommunication,  he  does  not  appear,  then 
let  the  trial  be  resumed  and  final  sentence  of  deposition  or 
dismissal  be  pronounced,  if  he  is  found  guilty. 

1019.  With  all  deference  to  Schmalzgrueber,  we  venture 
to  say  that  this  order  need  not  necessarily  be  followed,  but 
that,  especially  where  there  is  grave  reason  for  the  contrary, 
the  judge,  particularly  in  the  United  States,  may,  without 
waiting  a  full  year,  proceed  w:ith  .the  trial  and  pronounce  sen- 
tence, according  to  the  evidence  elicited  during  the  proceed- 
ings before  the  Commission  of  Investigation.  Moreover,  in 
the  United  States,  the  trial  before  the  Commission  of  Inves- 
tigation is  not  a  formal  trial,  but  partakes  of  the  nature  of 
proceedings  which  are  summary,  and  moreover  per  viam 
inquisitionis.  Consequently,  no  formal  litis  co7itestatio  is  re- 
quired with  us.  Hence  our  Commissions  can  go  on  with  the 
trial,  even  when  the  contumacy  happens  before  the  litis  con- 
test at  io  or  its  equivalent  has  taken  place. 

1020.  Q.  What  are  the  chief  effects  or  penalties  incurred 
by  an  accused  person,  also  in  the  United  States,  for  con- 
tumacy ? 

A.  We  premise  :  While,  as  we  have  just  seen,  contumacy 
is  not  equivalent  to  guilt,  and  while,  therefore,  no  accused 

•  Schmalzg.,  1.  c,  n.  3.  *  lb.,  n.  10. 


194  Of  the  Ordinary  Canonical  Trial 

person  can  be  forthwith  convicted  of  the  crime  of  which  he 
stands  charged  solely  because  he  is  contumacious,  yet  it  is 
also  plain  that  contumacy  is  itself  punishable  as  such,  apart 
from  the  question  of  the  guilt  or  innocence  of  the  defendant 
in  contempt.  For  it  is  an  act  of  stubborn  disobedience  or 
resistance  to  the  lawful  authority  of  the  judge,  and  is  there- 
fore considered  a  crime,  though,  of  course,  in  a  defendant  it 
frequently  has  extenuating  circumstances,  since  it  often  pro- 
ceeds rather  from  fear  than  any  real  disregard  or  contempt 
of  the  judge's  authority. 

1021.  We  now  answer:  i.  The  first  effect  of  contumacy 
is,  as  we  have  seen,  that  it  authorizes  the  judge  (with  us, 
also  Commission  of  Investigation)  to  proceed  with  the  trial 
or  hearing  of  the  case  in  the  absence,  and  therefore  to  the 
detriment,  of  the  accused.  For,  though  absent,  he  is  con- 
sidered present  at  the  trial :  "  Quia,"  as  the  Roman  law, 
adopted  by  the  Church,  says,  "  contumacia  pro  praesentia 
est."*  2.  The  second  effect  or  penalty  of  the  defendant's 
contumacy,  true  or  presumed,  is,  that  it  constitutes  a  pre- 
sumption of  guilt  against  the  accused."  But,  as  we  have 
seen,  presumptions,  no  matter  how  numerous,  do  not  suffice 
for  conviction  in  criminal  causes,  even  with  us.  Hence,  if, 
aside  from  this  presumption,  the  prosecution  (with  us,  the 
priest  or  vicar-general  appointed  by  the  bishop  according  to 
the  Instruction  of  the  S.  C.  de  P.  F.,  July  20,  1878,  §  2,  Re 
ad  Consilium)  produces  merely  additional  presumptions  or 
grounds  for  suspicion,  but  not  direct  and  positive  proof, 
there  can  be  no  conviction  in  criminal  causes,  or  even  grave 
civil  causes,  and  the  judge  will  have  to  declare  the  charges 
or  allegations  not  proven. 

1022.  3.  The  third  effect  or  penalty  is  that  a  pecuniary 
fine — the  amount  of  which  is  discretionary  with  the  judge — 


'  L.  2,  C.  Ubi  de  crim.  agi  op.  (iii.  15);  ib.  Auth.,  Qua  in  prov. 
'  MUnchen,  1.  c,  p.  408. 


in  Criminal  Causes.  195 

may  be  imposed  upon  an  accused  who  is  guilty  of  true  con- 
tumacy,' 4.  The  fourth  effect  or  penalty  is  that  an  accused 
who  is  in  contempt  can  be  excommunicated  for  such  crime 
of  contempt.'  And  if  he  obstinately  remains  under  excom- 
munication for  one  year,  he  becomes  suspected  of  heresy, 
and  may  be  proceeded  against  as  such/  Observe,  however, 
that  as  excommunication  is  the  greatest  penalty  in  the 
Church,"  it  should  not  be  resorted  to  until  the  lesser  punish- 
ments— v.g.,  first  pecuniary  fines,  then  suspension  from  office 
or  benefice — have  been  vainly  tried/  5.  Finally,  a  defend- 
ant, guilty  of  true  contempt,  loses  the  right  to  appeal,  so 
that  he  cannot  appeal  against  a  final  or  definitive  sentence 
pronounced  against  him  in  his  absence."  We  say,  true  con- 
tempt ;  for  presumed  contempt  does  not  deprive  of  this  right. 

1023.  General  remarks  in  regard  to  these  penalties. — i.  Be- 
fore proceeding  to  punish  any  one  for  contempt,  the  judge 
(with  us,  also  Commission  of  Investigation)  should  first 
declare  him  in  contempt.^  For  it  were  unjust  to  punish  a 
person  for  contempt  before  the  latter  has  been  juridically 
established/  In  other  words,  the  contempt  must  first  be 
juridically  (though  only  in  a  summary  manner)  proven  and 
declared  before  any  penalty  can  be  inflicted  for  it.  Hence, 
also,  a  new  citation  should  be  issued  for  this  purpose,  sum- 
moning the  accused  to  show  why  he  should  not  be  punished 
for  contempt.* 

1024.  In  the  United  States,  the  citation  to  the  accused  to 
appear  for  trial  is  issued  by  the  bishop."  But  it  pertains  to 
the  Commission  of  Investigation  to  examine  and  ascertain 

'  L.  2  ff.  Si  quis  in  jus  voc. ;  Reiff.,  1.  c,  n.  137. 

*  Cap.  3,  Ut  lit.  non.  cont.  (ii.  6);  cap.  8,  de  Dol.  (ii.  14).    "" 

*  C.  Trid.,  sess.  25,  c.  3,  de  Ref.  *  Can.  17,  C.  24,  Q.  3, 
'  C.  Trid.,  1.  c. ;  L.  Relegati  4  ff.  (xlviii.  19). 

«  L.  13,  C.  de  Jud.  (iii.  i);  L.  73  ff.  (v.  i).  '  Ex  cap.  6,  de  Dol.  (ii.  14). 

*  Reiff.,  1.  c,  n.  122.  •  Schmalzg.,  1.  c,  n.  55. 
'0  Instr.  cit.  S.  C.  de  P.  F.,  §  4. 


196  Of  the  Ordinary  Canonical  Trial 

whether  the  accused  has  been  disobedient  to  this  citation, 
and  therefore  whether  he  is  in  contempt  or  not ;  and  upon 
full  proof  of  such  contumacy,  to  find  or  declare  the  party 
guilty  of  contempt.  When  the  Commission  has  found  a 
person  guilty  of  contempt,  it  pertains  to  the  bishop  to  inflict 
the  proper  penalties  for  such  contempt  or  disobedience. 

1025.  2.  The  second  general  remark  is  that,  generally 
speaking,  the  judge  cannot  proceed  against  a  party  in  con- 
tempt, save  at  the  instance  or  demand  of  the  opposing 
party.'  We  say,  generally  speaking ;  for  when  the  judge  can 
and  does  proceed  ex  officio,  or  at  least  ex  mcro  officio,  or  if  he 
wishes  simply  to  impose  a  pecuniary  fine  for  the  contempt, 
he  can  proceed  of  his  own  accord.  We  have  just  said,  at 
least  ex  mero  officio;  because  where  the  judge  proceeds 
ex  officio  indeed,  but  yet  at  the  instance  Of  another, — v.g., 
prosecuting  official, — it  may  be  doubted  whether  he  can  act 
of  his  own  accord.*  The  safest  way,  therefore,  is,  speaking 
of  our  country,  for  the  Commission  to  proceed  to  take  cog- 
nizance of  the  contempt,  and  for  the  bishop  to  inflict  the 
penalty  therefor,  only  at  the  instance  of  the  official  ap- 
pointed by  the  bishop  pro  causa.  Miinchen^  contends  that 
in  criminal  trials  both  the  plaintiff  or  prosecution  and  the 
defendant  must  be  present  in  person,  not  merely  by  pro- 
curators. 

§  5.  Exceptions  {Exceptiones). 

1026.  After  the  citation  has  been  issued,  and  the  accused 
comes  into  court,  he  may,  without  joining  issue,  and  before 
entering  upon  the  cause,  or  into  the  merits  of  the  charges, 
make  various  exceptions  or  objections,  which  either  throw 
the  case  altogether  out  of  court  or  at  least  delay  it.*  By  an 
exception  {exceptio),  therefore,  we  mean  an  allegation,  pro- 

'  L.  68,  6g,  70  ff.  de  Jud.  (v.  i);  Schmalzg.,  1.  c,  n.  55. 

'  Reiff.,  1.  c,  n.  66.     ^  L.  c,  p.  394,  n,  10.     *  MUnchen,  1.  c,  p.  398,  n.  2. 


in  Criminal  Causes.  '  197 

test,  or  objection  made  by  the  accused,  which  either  retards 
or  entirely  repels  the  action  brought  against  him.'  As  will 
be  seen  from  this  definition,  exceptions  are  divided  chiefly 
into  peremptory  and  dilatory.  Peremptory  exceptions  {ex- 
ceptiones  peremptoriac,  perpetuae)  are  those  which  quash  the 
accusation  or  charge — i.e.,  throw  it  altogether  out  of  court. 
They  are  also  called  perpetual,  because  they  permanently 
and  forever  extinguish  the  action  or  accusation."  The  excep- 
tions of  this  kind  may  be  reduced  to  three  heads:  i.  Those 
which  show  that  the  alleged  foundation  of  the  complaint  or 
charge  never  existed — v.g.,  if  a  person  objects  or  excepts 
that  an  act  said  to  have  been  done,  was  not  done ;  or  that 
what  is  alleged  to  have  been  donated,  agreed  upon,  or  be- 
queathed, was  never  donated,  agreed  upon,  or  bequeathed.' 
2.  Those  which  demonstrate  that  the  action  or  cause  has 
become  extinct — v.g.,  by  compromise,  prescription,  by  hav- 
ing been  already  definitively  adjudicated.  3.  Finally,  those 
where  a  person  objects  or  protests,  for  instance,  that  he  has 
acted  from  fear,  or  compulsion,  or  error,  etc.* 

1027.  Dilatory  exceptions  {exccptiones  dilatoriae,  tempo- 
rales)  are  those  which  do  not  quash,  but  merely  defer  the 
action  for  a  time.'  There  are  various  kinds  of  dilatory  ex- 
ceptions. For  some  of  them  regard,  i,  the  judge — v.g.,  if 
the  defendant  objects  that  the  judge  is  suspected,  for  in- 
stance, either  because  of  his  enmity  to  the  defendant  or  his 
friendship  for  the  plaintiff ;  or  is  without  jurisdiction  in  the 
case,  or  ignorant  of  the  law  ;  or  otherwise  disqualified — v.g., 
by  defect  of  body  or  mind  or  birth — to  perform  his  duties  as 
judge.  2.  Others  relate  to  the  person  of  the  plaintiff  (prose- 
cuting party,  in  criminal  causes)  or  his  procurator  or  agent 
— v.g.,  if  a  defendant  objects  that   the  agent    has   no  man- 

'  Ex  1.  2  ff.  de  Except.  (44.  i). 

*  In       iv.  13,  §9;  1.  3  ff.  de  Except;  Reiff.;  1.  2,  t.  25,  n.  8. 

^  Sch    alzg.,  1.  2,  t.  25,  n.  4.  *  Inst.,  1.  iv.,  tit.  13,  §§  i-io. 

*  Inst.,  iv.  13,  §  10;  1.  3  ff.  de  Except.  (44.  i). 


198  Of  the  Ordinary  Canonical  Trial 

date.  3.  Again,  some  have  reference  to  the  accused  himself, 
or  defendant ;  v.g.,  where  the  latter  complains  that  he  has 
been  spoliatus, — i.e.,  despoiled, — in  other  words,  unjustly  de- 
prived of  his  rights  by  the  plaintiff  or  prosecutor,  and  there- 
fore asks  to  be  reinstated  in  his  rights,  before  he  is  obliged 
to  plead  in  the  cause  or  answer  the  complaint.  4.  Others 
relate  to  the  time  and  place,  mode  of  procedure,  etc.,  of  the 
trial  or  judicial  proceedings — v.g.,  if  a  person  protests  that 
the  place  is  unsafe ;  that  the  time  granted  him  for  appearing 
is  too  short ;  that  the  prescribed  formalities  of  the  trial  have 
not  been  or  are  not  being  observed.  5.  Finally,  others  con- 
cern the  cause  itself — v.g.,  where  a  person  objects  that  the 
charge  or  accusation  or  complaint  (with  us,  v.g.,  the  state- 
ment of  the  case  drawn  up  and  read  before  the  Commission 
of  Investigation,  by  the  bishop's  official')  is  too  obscure, 
vague,  doubtful,  etc." 

1028.  Not  unfrequently  an  exception  which  seems  prima 
facie  just  is  in  reality  groundless.  Hence  from  the  defend- 
ant's right  to  make  exceptions  follows  the  right  of  the  plain- 
tiff or  prosecution  to  reply  to  or  rebut  them.  To  the  latter's 
reply  the  defendant  may  rejoin,  and  vice  versa  the  plaintiff 
may  surrejoin,  and  so  on,  until  both  parties  have  exhausted 
their  arguments.  Lest,  however,  this  should  proceed  ad  in- 
finitum, the  judge  may  put  a  limit  to  the  discussions.  From 
this  it  will  be  seen  also  that  perfect  equality  should  exist  before 
the  law  or  judge  between  the  plaintiff  or  prosecution  and 
defendant ;  that  what  is  allowed  to  one — v.g.,  the  prosecu- 
tion— should  be  allowed  to  the  other;  nay,  the  defendant 
should  always  be  treated  more  liberally  and  generously  than 
the  plaintiff  or  the  prosecution.'  Lest,  moreover,  too  much 
delay  be  caused,  the  proceedings  in  the  case  of  exceptions — 
that  is,  in  the  making,  proving,  and  trial  of  exceptions — are 


»  Instr.  S.  C.  de  P.  F.,  20  Jul.,  1878,  §§  2  et  6.  '  Schmalzg.,  1.  c,  n.  5. 

'  Reg.  71,  in  6°;  1.  Invitus  ff.  de  Reg.  jur. ;  Reiff.,  1.  2,  t.  25,  n.  I. 


in  Criminal  Causes.  199 

always  conducted   in   a  summary  manner,  even  when  the 
trial  during  which  they  are  made  is  ordinary  or  solemn.' 

1029.  Q.  Can  exceptions  be  made  also  in  summary  canoni- 
cal trials,  and  in  trials  before  the  Commissions  of  Investiga- 
tion in  the  United  States  ? 

A.  Reasonable .  and  legitimate  exceptions  must  be  ad- 
mitted, not  only  in  ordinary  or  solemn  canonical  trials,  but 
also  in  summary.'  The  reason  is,  that  reasonable  objections 
belong  to  and  are  part  of  a  just  defence,  which  is  given  all 
defendants  by  the  very  law  of  nature.^  Hence  no  accused 
person  should  ever  be  denied  the  right  of  taking  proper  ex- 
ceptions, even  in  summary  proceedings.^  It  is  true  that  Pope 
Clement  V.^  enacts  that  in  summary  proceedings  the  judge 
should  reject  exceptions;  but,  as  the  Glossa'  and  canonists 
explain,  this  is  to  be  understood  only  of  frivolous  objections, 
not  of  reasonable. 

1030.  From  what  has  been  just  said,  it  is  plain  that  the 
right  of  making  exceptions  obtains  also  in  proceedings  be- 
fore Commissions  of  Investigation  in  the  United  States.  In 
fact,  this  right,  being  part  of  a  just  defence,  is  guaranteed  by 
the  law  of  nature  itself,  and  is  moreover  clearly  granted  the 
accused,  in  the  Instruction  of  the  S.  C.  de  P.  F,,  dated  July 
20,  1878,  where  this  sacred  congregation  provides  that  full 
liberty  shall  be  given  the  defendant  to  defend  himself.'' 

103 1.  Q.  At  what  stage  of  the  proceedings  are  the  excep- 
tions to  be  made  and  proved  ? 

A.  A  distinction  must  be  made  between  dilatory  and 
peremptory  exceptions,  i.  Dilatory  exceptions  should,  as 
a  rule,  be  made  and  proved  before  the  litis  contestatio — i.e., 
before  the  accused  enters  his  plea ;  or,  speaking  of  the  United 

'  Miinchen,  1.  c,  p.  259. 

*  Cap.  13,  de  Off.  del.  (i.  29);    ib.  Glossa,  v.  Nullae. 
^  L.  Praetor  i,  §  27  ff.  de  Vi,  et  de  vi  arm.  (43.  16). 

*  Reiff.,  1.  c,  n.  loi.  «  Clem.  Saepe  2,  de  V.  S.  (v.  11). 

*  In  Clem,  cit.,  §  Amputet.  '  Instr.  cit.,  §  7,  Deinde. 


200       '       Of  the  Ordmary  Canonical  Trial 

States,  before  he  submits  to  the  Commission  of  Investigation 
his  answer  to  or  refutation  of  the  charges  or  statement 
made  against  him  by  the  bishop's  official.'  We  say,  as  a 
rule  ;  for  there  are  some  exceptions  to  this  rule.  Thus,  among 
other  dilatory  exceptions,  the  following  can  be  made  after 
the  contestation  of  the  cause  (with  us,  after  the  defendant  has 
given  in  his  answer  before  the  Commission) :  i.  Where  the 
defendant  reserves  to  himself  the  right  to  make  other  excep- 
tions. He  must,  however,  specify  or  name  them,  as  it  is  not 
sufficient  for  him  to  say  in  general  that  he  reserves  the  right 
to  make  other  exceptions.  2.  If  after  the  litis  contcstatio 
(with  us,  after  the  defendant's  answer  has  been  read  before 
the  Commission)  an  exception  arises  anew,'  or  becomes 
known  or  provable  only  then.'  3.  If  the  exception  is  made 
immediately  after  the  contestation.  For  it  is  a  general  rule, 
that  whatever  is  done  immediately  after  another  act,  is  con- 
sidered part  of  it,  and  as  forming  one  whole  with  it.*  4. 
Where  the  exception  has  for  its  object  a  grievance  which  is 
continuous.^ 

1032.  We  have  said,  and  proved ;  since  exceptions  must  be 
fully  and  completely  proved  by  the  person  making  them ; 
otherwise  they  have,  no  effect  whatever.'  For  the  party  or 
defendant  who  makes  an  exception  becomes  the  plaintiff,  so 
far  as  his  objection  is  concerned  ;  and  therefore  the  burden 
of  proof  lies  upon  him.'  From  what  has  been  said,  it  is  evi- 
dent, as  we  have  already  shown  elsewhere,Hhat  when  excep- 
tions are  made,  whether  dilatory  or  peremptory,  it  becomes 
the  duty  of  the  judge  (in  the  United  States,  the  bishop,  or 
in  criminal  and  disciplinary  causes  of  ecclesiastics,  the  Com- 
mission of  Investigation)  not  to  proceed  with  the  case  itself 
until  he  has  first  heard  the  proofs  in  support  of  the  excep- 
tions  and   the   answer  of  the   opponent   thereto,  and   pro- 

>  Instr.  cit.  §  7,  Deinde.  *  L.  11  ff.  de  Except.  (44.  i). 

2  Cap.  24,  de  Except,  (ii.  25).  ■•  L.  40  ff.  de  Reb.  cred.  (12.  i). 

*  Schmalzg.,  1.  c,  n.  22.      '  lb.,  n.  32.       '  L.  19  ff.  de  Probat.     ^  Supra,  n.  978. 


in  Criminal  Catises.  201 

nounced  these  exceptions  either  just  or  unjust  by  an  inter- 
locutory sentence.'  This  holds  so  strictly,  that  if  the  judge 
acts  differently  it  is  lawful  to  appeal  against  his  action,  even 
at  present ;  and  whatever  he  has  done  in  the  case  after  this- 
appeal  should  be  annulled  as  an  attentate."  Of  course  the 
above  does  not  apply  in  the  case  of  peremptory  exceptions, 
which  are,  as  we  shall  presently  see,  made  after  the  main 
cause  has  been  finished  and  decided  by  a  final  sentence. 

1033.  2.  Peremptory  exceptions  should,  generally  speak- 
ing, be  made  after  the  litis  contestation  The  reason  is  that 
these  exceptions,  if  proved,  quash  the  accusation  or  com- 
plaint. But  no  action  can  be  quashed  before  it  has  a  juridical 
existence,  or  before  it  is  in  court.  Now  an  action  is  brought 
into  court  by  the  contestation.*  When  we  say,  after  the  litis 
contestatio,  we  mean  that  they  can  be  made  at  any  time  after 
the  contestation  till  the  final  sentence  ^  (with  us,  in  proceed- 
ings before  Commissions  of  Investigation,  from  the  time  the 
accused  begins  to  reply  to  the  statement  of  the  bishop's  offi- 
cial, till  the  final  sentence  of  the  bishop). 

1034.  We  S2iy ,  generally  speaking;  for  some  peremptory 
exceptions  may  be  made  before  the  contestation  of  the  cause  : 
— v.g.,  the  exception  of  prescription ;  those  exceptions  whose 
truth  is  notorious  ;  or  the  exception  of  res  judicata,  or  of  com- 
promise." The  reason  is  that  the  cause  being  barred  by  pre- 
scription, or,  as  the  expression  is  in  our  secular  courts,  by  the 
statute  of  limitation,  or  having  been  terminated  and  settled  by 
compromise  or  final  sentence,  should  not  be  revived  or  begun 
anew."  Some  peremptory  exceptions  may  even  be  made 
after  the  final  sentence  has  been  pronounced — v.g.,  the  ex- 
ception that  the  sentence  is  null  and  void,  and  in  general 
those  exceptions  which  have  reference  to  the  final  sentence 

'  Cap.  19,  de  Jud.  (ii..  i).  ^  Schmalzg.,  1.  c,  n.  32. 

'  Ex  leg.  g,  C.  de  Except,  (viii.  36).  *  Schmalzg.,  1.  c,  n.  23. 

^  Glossa,  in  cap.  12,  de  Except,  (ii.  25),  v.  In  dilatoriis. 
*  Cap.   I,  dcLit.  cont.,  in  6°.  '  Reiflf.,  1.  c,  n.  47. 


202  Of  the  Ordmary  Canonical  Trial 

or  its  execution.'  Note. — As  a  rule,  the  exception,  whether 
dilatory  or  peremptory,  must  be  made,  not  by  the  judge,  but 
by  the  defendant.  Otherwise  the  latter  is  considered  as 
having  waived  his  right  of  so  doing.  Again,  exceptions, 
whether  dilatory  or  peremptory,  should  be  made  in  writing, 
but  can  also  be  made  viva  voce,  provided  they  are  recorded 
on  the  minutes  or  in  acts  of  the  cause." 

§  6.  Exceptions  against  the  Judge. 

1035.  As  the  exceptions  which  are  made  against  the  judge 
himself  are  made  and  proved  and  decided  in  a  manner  alto- 
gether peculiar,  and  different  from  that  in  which  the  other 
exceptions  are  decided,  we  shall  discuss  them  here  under  a 
separate  heading.  Before  giving  the  mode  of  procedure  in 
these  exceptions,  we  shall,  for  the  sake  of  greater  clearness, 
make  a  few  prefatory  remarks,  i.  As  we  have  already 
seen,  the  exception  against  the  judge  is  always  a  dilatory, 
not  a  peremptory  one.  For  the  effect  of  such  an  exception 
is  not  to  extinguish  the  action  or  complaint,  but  merely  to 
transfer  its  adjudication  to  another  judge.  2.  The  exception 
against  the  judge  may  be  either  against  his  competence — 
namely,  that  he  has  no  jurisdiction  in  the  case,  or  against 
his  judicial  integrity — namely,  that  he  is  suspected.  3.  It  is 
certain  that  a  judge  otherwise  competent  in  the  case  can 
nevertheless  be  challenged  or  objected  to,  solely  because 
there  is  reasonable  ground  for  suspecting  his  integrity  in 
rendering  justice  in  the  case.*  For,  as  Pope  Celestin  III. 
says :  "  Ipsa  namque  ratio  dictat  quod  suspecti  et  inimici 
judices  esse  non  debent."  * 

1036.  4.  The  Pope  cannot  be  objected  to  as  suspected, 
since  his  exalted  position  places  him  above  all  suspicion. 
But  all  other  ecclesiastical  judges,  both  ordinary,  such  as 

'  Reifif.,  1.  c,  n.  52;  Schmalzg.,  1.  c,  n.  24.  *  Schmalzg.,  1.  c,  n.  29. 

»  L.  16,  C.  de  Jud.  ■♦  Cap.  41,  de  Appell.  (ii.  28);  Can.  15,  C.  3,  Q.  5. 


in  Criminal  Caiises.  203 

bishops,  and  delegated,  and  even  judges  of  appeal,  such  as 
metropolitans,  can  be  challenged  as  suspected  ; '  nay,  even  a 
college  or  collective  body  of  judges — i.e.,  a  number  of  judges 
acting  collectively  or  as  a  moral  body — can  be  challenged. 
Hence  also,  as  we  have  already  seen,  both  individual  mem- 
bers and  the  entire  body  composing  a  Commission  of  Inves- 
tigation, with  us,  may  be  challenged  as  suspected,  because, 
among  other  reasons,  they  take  the  place  of  the  judge 
(bishop)  so  far  as  concerns  the  hearing  of  the  cause. 

1037.  5.  The  legitimate  reasons  for  challenging  a  judge 
as  suspected  are  chiefly  the  following:  {a)  If  there  is  ground 
for  believing  him  to  be  iiostile.  to  the  defendant,  which  can 
be  presumed  if  he  has  made  threats  against  him,  or  refused 
to  show  him  the  ordinary  signs  of  courtesy  or  benevolence ; 
{b)  When  he  has  a  special  affection  for,  or  particular  relations 
with,  the  opponent  of  the  person  making  the  challenge — 
v.g.,  if  he  is  a  relative,  master,'  colleague,  or  particular  friend 
of  the  opponent,  ic)  If  he  has  a  particular  bias  in  favor  of 
the  cause— z^.^.,  if  he  has  acted  as  advocate  in  the  same  case  ; 
or  if  he  has,  as  a  private  person,  a  similar  cause  pending 
before  another  judge.  The  reason  is  that  it  is  presumed  he 
will  pass  sentence  in  the  same  way  as  he  wishes  the  other 
judge  to  do  in  his  own  case.'  In  general  it  must  be  observed 
that  it  is  left  to  the  arbitrators  selected,  as  we  shall  presently 
see,  to  decide  what  is  a  just  cause  for  challenging  a  judge  as 
suspected.  For  it  is  their  right  and  duty  to  decide  not  only 
whether  the  facts  exist,  but  also  whether  they  are  sufficient 
to  authorize  the  rejection  of  the  judge.* 

1038.  Q.  What  is  the  mode  of  procedure  when  the  judge 
is  challenged  or  objected  to  ? 

A.  When  the  judge  is  excepted  to  as  incompetent, — i.e., 
as  not  possessed  of  jurisdiction  in  the  cause, — he  himself  has 


'  Ex  cap.  41  et6i,  de  Appell.  (ii.  28);  Schmalzg.,  1.  2,  t.  28,  n.  135, 
*  Schmalzg.,  1.  c,  n.  138.  '  lb.,  n.  137. 


204  Of  the  Ordinary  Canonical  Trial 

the  right  to  pronounce  upon  the  exception,  or  decide 
whether  or  not  he  has  jurisdiction.'  If  he  is  challenged, 
however,  as  suspected,  the  following  is  the  mode  of  proce- 
dure prescribed  by  the  Church  or  the  sacred  canons,  i. 
The  person  challenging  must  state  the  specific  or  precise 
cause  of  the  challenge  or  suspicion,  and  that  in  writing,  and 
to  the  judge  himself  who  is  challenged.''  2.  The  cause  of  the 
suspicion  is  not,  however,  to  be  tried  and  decided  by  the 
judge  himself  who  has  been  challenged  (lest  he  may  thus 
seem  to  act  as  judge  in  his  own  cause,  which  is  forbidden  '), 
but  must,  as  a  rule,  be  committed  to  arbitrators  for  decision. 
1039.  3-  The  mode  of  appointment  of  these  arbitrators  is 
this  :  Where  there  is  a  plaintiff,  distinct  from  the  judge, — 
v.g.,  where  the  trial  is  by  way  of  accusation  or  denunciation 
— two  arbitrators  are  selected  by  mutual  agreement  of  the 
plaintiff  and  defendant,  if  they  can  agree  upon  two.  If  they 
cannot  agree  upon  any  two,  the  plaintiff  selects  one  and  the 
defendant  the  other.  Where  the  judge  proceeds  ex  officio, 
as  in  the  trial  by  way  of  inquiry  (the  trial  in  the  United 
States,  as  prescribed  b}^  the  S.  C.  de  P.  F.,  July  20,  1878,  par- 
takes, as  we  have  seen,  of  the  process  by  way  of  inquiry), 
and  where,  consequently,  there  is  no  plaintiff  distinct  and 
separate  from  the  judge,  the  selection  or  appointment  of  the 
arbitrators  should  be  made  in  the  manner  just  given,  by  the 
judge  who  is  challenged  and  the  party  challenging.  This  is 
certain  in  the  case  of  a  judge  proceeding  absolutely  ex  officio 
— i.e.,  not  at  the  instance  of  a  third  party  ;  v.g.,  the  diocesan 
promoter  or  prosecuting  official.  Whether,  in  case  he  pro- 
ceeds at  the  instance  of  the  promoter  (with  us,  bishop's  offi- 
cial *),  the  appointment  of  one  of  the  arbitrators  belongs  to 
the  latter  official — who  is,  so  to  say,  the  plaintiff — or  to  the 
bishop  or  judge,  we  do  not  feel  competent  to  decide. 


1  Supra,  n.  721.     *  L.  16,  C.  de  Jud.     ^  L.  unic.  C.  Ne  quis  in  sua  caus.  jud.  (iii.  5). 
*  Instr.  S.  C.  de  P.  F.,  July  20,  1878,  §  2. 


in  Criminal  Causes.  205 

1040.  4.  If  the  two  arbitrators  thus  chosen  cannot  agree 
upon  a  decision  as  to  the  cause  of  the  suspicion,  they  should 
choose  a  third  one.  Whatever  two  of  these  three  arbitrators 
decide,  shall  be  binding.  5.  If  the  arbitrators  decide  that 
the  cause  or  reason  upon  which  the  challenge  is  based  is 
insufficient  or  not  proven,  the  judge  challenged  will  then 
proceed  with  the  case  as  though  he  had  not  been  challenged. 
If,  however,  they  pronounce  the  cause  of  the  challenge  legiti- 
mate and  proven,  the  challenged  judge  cannot  proceed  with 
the  case,  but  should  either  transmit  it  to  the  superior  tri- 
bunal, or  delegate  it,  with  the  consent  of  the  person  chal- 
lenging, to  some  other  person.  This  can  be  done  even 
before  recourse  is  had  to  arbitration.'  The  mode  of  pro- 
cedure above  outlined,  was  established  by  Popes  Celestin 
III."  (1195)  and  Innocent  III."  (1216),  and  is  still  in  force. 

1041.  What  are  the  rights  and  duties  of  these  arbitrators? 
They  can  and  should  take  cognizance  of,  and  pronounce 
solely  on,  the  cause  or  grounds  of  the  challenge  or  suspicion, 
and  not  on  the  merits  of  the  main  cause  or  issue  during  the 
trial  of  which  the  challenge  is  made.  For  this  purpose  they 
can  cite  witnesses  and  compel  them  to  testify;  admit  excep- 
tions against  the  persons  or  depositions  of  the  witnesses  ;  etc., 
etc.*  They  should  decide,  as  we  have  seen,  upon  two  ques- 
tions: First,  one  of  law — namely,  whether  the  cause  of  the 
suspicion,  as  alleged,  is  one  which,  according  to  the  law  of 
the  Church,  or  the  opinion  of  prudent  and  good  men,,  would 
justly  render  the  judge  suspected.  Second,  the  other  of 
fact — namely,  whether  the  cause  is  proved  to  exist  in  reality.^ 

1042.  Application  of  the  above  principles  to  the  United 
States. — That  it  is  allowed  also  with  us  to  object  against  an 
ecclesiastical  judge  as  suspected,  there  can  be  no  doubt. 
For,  as  we  have  seen,"  the  right  to  make  exceptions  of  this 

'  Schmalzg.,1.  c,  n.  142.  *  Cap.  41,  de  Appell.  (ii.  28). 

'  Cap.  61,  de  App.  (ii.  28).  ■•  Schmalzg.,  L  c,  n.  141. 

*  Supra,  n.  803,  808;  Bouix,  de  Jud.,  vol.  ii.,  p.  182.  ®  Supra,  n.  1030. 


2o6  Of  the  Ordinary  Canonical  Trial 

kind  forms  part  of  a  just  defence,  which  is  given  by  the  law 
of  nature,  and  is,  moreover,  expressly  granted  by  the  In- 
struction of  the  S.  C.  de  P.  F.,  establishing  Commissions  of 
Investigation  in  this  country.'  It  is  certain  that  the  bishop, 
with  us  as  elsewhere,  can  be  challenged.  We  have,  more- 
over, seen  that  members  of  Commissions  of  Investigation 
may  also  be  objected  to.  Where  the  bishop,  with  us,  is 
objected  to,  the  mode  of  procedure  is  plain  enough  ;  since 
the  principles  above  laid  down  seem  easy  of  application. 
For  the  bishop  either  transmits  the  whole  or  main  cause  to  a 
higher  ecclesiastical  tribunal,  or,  with  the  consent  of  the 
challenger,  delegates  it  to  some  other  ecclesiastic  for  adjudi- 
cation, or  the  cause  of  the  challenge  is  submitted  to  arbitra- 
tors, chosen  as  stated  above.  That  the  bishop  cannot  him- 
self decide  the  allegations  upon  which  the  challenge  is  based, 
is  clear  from  the  fact  that  the  law  of  the  Church,  forbidding 
the  challenged  judge  to  take  cognizance  of  the  challenge,  is 
founded  upon  the  natural  law,  as  Pope  Celestin  III.  inti- 
mates,* which  obtains  also  with  us,  independently  of  the 
question  whether  canon  law  fully  obtains  in  this  country. 

1043.  Mode  of  proccdtire  when  a  member  of  a  Commission  of 
Investigation  is  challenged,  with  us,  as  suspected. — This  question 
seems  to  us  difficult  of  solution.  Is  the  issue  or  question, 
whether  the  reasons  alleged  for  challenging  a  member  of  a 
Commission  are  well-founded  and  sufficient,  to  be  decided 
by  the  bishop  or  by  the  Commission,  without  any  recourse  to 
arbitration,  or  is  it  to  be  committed  to  arbitrators,  as  above 
explained ;  and  if  so,  how  are  these  arbitrators  to  be  chosen  ? 
By  the  defendant  and  the  bishop  or  the  latter's  prosecuting 
official?  Or  by  the  defendant  and  the  Commission — or  at 
least  the  member  of  the  Commission  who  is  challenged  ? 
Before  answering  directly,  we  beg  to  say  that  the  only  safe 
way  in  which,  it  seems  to  us,  a  satisfactory  answer  can  be 

1  Instr.  cit.,  §  7,  Deinde.  »  Cap,  41  (ii.  28). 


in  Criminal  Causes.  207 

given,  is  by  a  decision  of  the  Holy  See.  The  organization 
of  our  ecclesiastical  courts,  according  to  the  Instruction  of 
the  S.  C.  de  P.  F.,  dated  July  20,  1878,  is  somewhat  different 
from  that  established  by  the  common  law  of  the  Church, 
and  resembles  in  many  ways  that  of  secular  courts  in  this 
country  and  elsewhere,  which  are  composed  of  a  judge  and 
a  jury.  Hence  it  is  not  easy  to  arrive  at  certain  conclusions. 
1044.  In  the  absence  of  any  authentic  decision  of  the 
Holy  See,  and  without  wishing  to  forestall  such  decision,  we 
venture  to  lay  down  the  following  inferences:  i.  We  said 
above,  "  that,  as  a  rule,  the  grounds  for  the  challenge  of  a 
judge  must  be  referred  to  arbitrators.  From  this  rule  there 
are  three  exceptions — i.e.,  cases  where  the  reasons  for  the 
challenge  need  not  be  submitted  to  arbitrators,  but  may  be 
taken  cognizance  of  by  others.  These  cases  are  :  I.  Where 
the  judge  challenged  is  a  delegated  judge,  and  where  the 
judge  who  delegated  him  is  easily  accessible,  or  not  too  far 
away,  the  cause  of  the  challenge  is  taken  cognizance  of,  not 
by  arbitrators,  but  by  the  judge  delegating.'  So  a  challenge 
against  a  judge  delegated  by  the  bishop  is  decided  by  the 
bishop,  and  not  by  arbitrators.  In  like  manner,  it  may  be 
argued,  when  a  member  of  a  Commission  of  Investigation, 
with  us,  is  challenged,  the  cause  of  the  challenge  should  be 
taken  cognizance  of  by  the  bishop,  and  not  by  arbitrators. 
However,  against  this  it  may  be  said  that  members  of  Com- 
missions are  indeed  appointees,  but  not  delegates  of  the 
bishop,  but  rather  delegates  of  the  Holy  See,  or,  a  jure,  like 
synodal  judges,  since  they  are  clothed  with  jurisdiction,  not  by 
the  bishop,  but  by  the  law, — i.e.,  the  Instruction  of  the  S.  C. 
de  P.  F.,  of  July  20,  1878.  Now,  the  reasons  upon  which  a 
challenge  against  a  delegated  judge  are  based  are  to  be  de- 
cided by  the  judge  who  delegated  him  only  when  this  dele- 
gating judge  is  near  at  hand,  so  as  to  cut  ofT  delay.     When 

'  Cap.  Si  contra  2,  dc  Off.  del,,  in  6°  (i.  14). 


2o8  Of  the  Ordinary  Canonical  Trial 

he  is  far  off,  as  the  Holy  See  is  with  regard  to  the  United 
States,  the  decision  is  to  be  left  to  arbitrators.  Moreover, 
as  we  shall  see  in  the  case  of  vicars-general,  the  judge  or 
bishop  delegating  cannot  try  the  challenge,  but  must  refer 
it  to  arbitrators,  when  he  is  himself  suspected.  Now,  it 
may  happen  from  various  reasons  that  when  a  Commis- 
sioner is  suspected  the  bishop  may  also  become  suspected. 

1045.  II.  The  second  exception  is  where  the  vicar-general 
acting  as  judge  is  challenged.  In  this  case  the  challenge  is 
decided  by  the  bishop,  not  by  arbitrators,'  unless  the  bishop 
is  himself  suspected."  From  this  again  it  may  perhaps  be  in- 
ferred that  the  bishop,  and  not  arbitrators,  has  the  right  to 
hear  the  challenge  made  against  a  member  of  a  commission. 
Against  this  conclusion  it  may,  however,  be  objected  that 
the  decision  of  the  challenge,  in  the  case  of  the  vicar-general, 
belongs  to  arbitrators,  and  not  to  the  bishop,  if  the  latter  is 
himself  suspected.  Now,  according  to  Bouix,^  practically 
speaking,  the  bishop  may  always  be  considered  suspected 
when  his  vicar-general  is  so  regarded,  and  vice  vcrsd.  In 
like  manner  it  may  perhaps  be  reasoned,  when  a  member  of 
a  Commission  is  suspected,  the  bishop  who  appointed  him 
becomes  frequently,  eo  ipso,  also  suspected,  and  therefore 
incompetent  to  try  the  challenge.* 

1046.  III.  The  third  exception  is  where  two  delegates  (the 
same  holds  where  more  than  two  are  appointed ')  are  ap- 
pointed by  the  Holy  See  (the  same  holds  of  delegates  ap- 
pointed by  others  *),  with  the  clause.  Quod  si  ambo  non  potcstis, 
unus  sen  alter  procedat — i.e.,  in  such  manner  that  if  both  or  all 
cannot  proceed  in  the  cause,  then  the  other  or  others  can  pro- 
ceed. In  this  case,  when  one  of  the  delegates  is  challenged  as 
suspected,  the  challenge  is  tried  and  decided,  not  by  arbitra- 
tors, but  by  the  other  delegate  or  delegates  not  challenged, 

'  Cap.  Si  contra  cit.       *  Schmalzg.,  1.  2,  t.  28,  n.  140.     '  De  Jud.,  vol.  ii.,  p.  184. 

*  Cf.  Leur.,  For.  Benef.  Tr.  de  Vicario-gen.,  Q.  90  et  91. 

5  Glossa,  in  cap.  4,  in  6°  (i.  14),  v.  Ex  duobus.         *  Glossa,  ib.  v.  A  Sede  Ap. 


in  Criminal  Causes.  209 

so  that  the  latter  may  know  whether  he  or  they  can  go  on 
without  the  colleague  challenged.  This  law,  however,  does 
not  apply  to  two  or  more  delegated  judges  appointed  in  such 
a  manner  as  to  be  obliged  to  proceed  collectively,  so  that 
one  cannot  proceed  without  the  other.  In  the  latter  case, 
the  challenge  against  one  of  the  judges  must  be  referred  to 
and  decided  by  arbitration.' 

1047.  From  this  third  exception  it  may  perhaps  be  argued 
that  from  the  fact  that  in  the  United  States  a  Commission 
of  Investigation — supposing  it  to  consist  of  five  members — 
is  empowered  to  proceed  in  a  cause  so  long  as  three  mem- 
bers remain  qualified  or  unchallenged,*  it  follows  that  in  case 
the  fourth  or  even  fifth  member  is  challenged  it  becomes  the 
right  and  duty  of  the  other  three  or  (in  case  only  one  member 
is  challenged)  four  members  who  are  unchallenged,  to  take 
cognizance  of  and  decide  the  challenge,  so  that  they  may 
know  whether  their  colleague  has  become  disqualified  or  not, 
and  whether  consequently  they  can  proceed  in  the  cause 
without  him.  But,  it  may  perhaps  likewise  be  further  rea- 
soned, if  only  two  (or  less)  members  remain  unchallenged  (no 
matter  whether  the  Commission  consists  of  five  or  only  three 
members),  the  challenge  must  be  referred  to  and  decided  by 
arbitrators ;  for  two  cannot  proceed  validly  (of  course,  m 
causes  where  the  Commission  must  be  convened),  and  there- 
fore have  no  right  to  inquire  whether  they  can  go  on  or  not 
without  their  colleagues.  Besides,  it  may  further  be  said, 
as  these  two  cannot  proceed  alone,  they  are  like  a  number  of 
delegates  or  judges  appointed  collectively  for  a  cause  with- 
out the  clause,  "  quod  si  non  omnes  possunt,  alter  procedat," 
and  consequently  recourse  must  be  had  to  arbitrators. 

1048.  Note,  however,  we  say  "  it  is  the  right  and  duty  of 
the  three  or  four  unchallenged  Commissioners  to  take  ccf^ni- 


'  Cap.  Si  contra  cit. 

«  Instr.  S.  C.  de  P.  F.,20  Julii,  1878,  §  Quod  si. 


2IO  Of  the  0}-dinai'y  Canonical  Trial 

sance  of  the  challenge;"  for  although,  according  to  the  view 
just  explained,  the  challenge  is  to  be  proved  before  the  mem- 
bers who  are  unchallenged,  it  is  nevertheless  to  be  proposed 
or  made  before  the  whole  body,  inclusive  of  the  member 
challenged,^ as  the  Glossa'  explains  in  the  case  of  challenged 
delegates. 

1049.  Q-  By  whom  are  the  arbitrators  to  be  chosen  in  the 
United  States,  supposing  that  the  challenge  is  referred  to 
arbitrators  ? 

A.  I.  One,  of  course,  by  the  defendant  making  the  chal- 
lenge; the  other  by  the  member  of  the  Commission  chal- 
lenged, or  perhaps  by  the  priest  appointed  by  the  bishop  to 
conduct  the  prosecution  of  the  cause."  For,  as  we  have 
seen,'  where  the  judge  proceeds  ex  officio,  and  there  is  conse- 
quently no  plaintiff  distinct  from  the  judge,  the  judge  him- 
self who  has  been  challenged  appoints  the  second  arbitrator. 
Now,  with  us,  the  procedure  is  ex  officio,  and  the  Commis- 
sioner who  is  challenged,  together  with  the  rest  of  the  Com- 
mission, represents  the  judge  or  bishop,  and  therefore  has  the 
appointment  of  the  second  arbitrator.  We  say,  however, 
or  perhaps  by  the  priest,  etc. ;  the  reason  of  this  conjecture  is, 
that  the  proceedings  of  the  judge  or  Commission,  where  a 
promoter  or  prosecuting  official  intervenes,  are  ex  officio  in- 
deed,  but  yet  not  absolutely  or  strictly  so  ;  that,  consequently, 
as  this  official  seems  to  a  certain  extent  to  occupy  the  posi- 
tion of  a  plaintiff,  it  may  perhaps  be  his  right  to  name  the 
second  arbitrator. 

1050.  2.  If  the  two  arbitrators  cannot  agree  as  to  the 
existence  or  reasonableness  of  the  cause  alleged  for  the  chal- 
lenge, they  should  select  a  third  one,  as  stated  above.* 
Should  the  arbitrators  decide  (and  they  should  proceed  sum- 


'  In  cap.  Si  contra,  v.  Probari. 

*  Instr.  S.  C.  de  P.  F.  cit.,  §  2,  Re  ad  consilium. 

*  Supra,  n.  1039.  *  Supra,  n.  1040. 


in  Criminal  Causes.  2 1 1 

marily)  that  the  challenge  is  well  taken, — i.e.,  legitimate  and 
proved, — the  decision  of  the  arbitrators  must  be  communi- 
cated to  the  bish(5p  (at  least  where  only  two  Commissioners 
remain  unchallenged),  who  will  thereupon  appoint  another 
priest  to  act  on  the  Commission  (at  least,  where  (^therwise 
the  Commission  would  consist  of  less  than  three  members), 
for  that  particular  case,  in  the  place  of  the  challenged  mem- 
ber of  the  Commission.  The  latter  does  not  cease  to  be  a 
member,  but  is  simply  disqualified  to  sit  in  the  particular 
case  of  the  person  by  whom  he  has  been  challenged. 

105 1.  Again,  a  member  of  a  Commission,  when  objected 
to,  may  save  the  necessity  of  recourse  to  arbitrators  by  vol- 
untarily giving  up  his  place  for  that  particular  case.  And 
as  the  acts  of  the  Commission  are  valid,  provided  three 
members  remain  qualified  and  conduct  the  proceedings,  the 
bishop  need  not  necessarily  appoint  any  other  priest  to  fill 
the  place  of  the  challenged  member,  provided  three  mem- 
bers remain.  Should,  however,  the  bishop  determine  to 
appoint  a  temporary  member  to  fill  the  place  of  the  one  chal- 
lenged (which  he  is  bound  to  do  when  less  than  three  remain 
unchallenged  or  qualified),  he  would  be  obliged  to  appoint 
one  who  would  not  be  objectionable  to  the  challenger,' 

1052.  Q.  When  is  the  objection  or  challenge  against  the 
ecclesiastical  judge  to  be  made  ? 

A.  Before  the  litis  contestation  and  within  twenty  days 
after  the  bill  of  complaint  or  charges  (with  us,  the  statement 
drawn  up  by  the  bishop's  official,  and  sent  the  defendant, 
together  with  the  citation^)  has  been  presented  to  the  ac- 
cused or  defendant.  Thus  the  Roman  law,  adopted  by  the 
Church,  says  :  "  Offeratur  ei  qui  vocatur  in  judicium  libellus; 
et  exinde  .  .  .  viginti  dierum  gaudeat  induciis,  quibus  de- 
liberet  ...  an  recuset  eum"  (judicem).'     We  say,  "  before 


»  Ex  cap.  61  (ii.  28).  «  Instr.  S.  C.  de  P.  F.,  20  Jul.,  1878,  §§  2  et  4. 

'  L.  offeratur  i,  C.  de  Lit.  cont.  (iii.  9). 


212  Of  the  Ordinary  Canofiical  Trial 

the  litis  contestatio  or  plea."  For  the  exception  or  challenge 
against  the  judge  belongs  to  the  class  of  exceptions  called 
dilatory  exceptions,  which,  as  we  have  seen,'  must  generally 
be  made  or  proposed  before  the  contestation  of  the  cause. 
Nay,  the  exception  against  the  judge  has  this  peculiar  char- 
acteristic, that  it  should  be  proposed  before  any  other  dila- 
tory exception.*  The  reason  is,  that  a  person  who  submits 
any  other  dilatory  exception  before  he  challenges  the  judge, 
is  presumed  to  have  accepted  the  judge,  by  allowing  the 
exception  to  be  tried  before  him,  and  thus  to  have  waived 
his  right  of  challenge.^  As  shown,  however,  above,"  this 
exception,  like  dilatorj"^  exceptions  in  general,  may  sometimes 
be  made  after  the  contestation. 

1053.  Finally,  we  remark,  that  as  exceptions  are  the  le- 
gitimate weapons  of  defence, — anna  rcorian," — and  therefore 
guaranteed  by  natural  law  itself,  it  follows  that  if  the  judge 
(with  us,  v.g.,  bishop  or  Commission  of  Investigation)  re- 
fuses to  admit  an  exception  properly  made,  it  is  allowed  to 
appeal  (also  with  us,  in  proceedings  before  Commissions  of 
Investigation)  at  once  against  such  refusal.* 

1054.  What  are  the  chief  effects  of  the  challenge  against 
the  judge  ?  After  the  challenge  or  recusation  has  been  pro- 
posed, and  pending  its  decision,  the  judge  should  not,  unless 
the  challenge  is  manifestly  frivolous,  proceed  with  or  do 
anything  further  in  the  main  cause ;  otherwise  his  acts  will 
be  attentates,  as  though  done  after  an  appeal  had  been  inter- 
posed. Consequently,  these  acts,  or  rather  attentates,  must 
before  all  else  be  revoked  by  the  superior  judge.  It  is, 
however,  a  controverted  question  whether  they  are  ipso  Jure 
null  and  void,  or  only  subject  to  being  declared  void  by  the 
higher  judge/ 

'  Supra,  n.  1031.  '  L.  13,  C.  de  Jud.  (8.  36);  Reiflf.,  1.  c,  n.  12. 

^  Glossa,  in  cap.  12   (ii.  25),  v.    In  dilatoriis;  Glossa,  in    cap.  20   (ii.  26),  v. 
Subeundo.  *  Supra,  n.  1031;  Schmalzg.,  1.  c,  n.  133. 

*  Glossa,  in  tit.  de  Except.     *  Reiff.,  1.  c,  n.  82.       ■"  Schmalzg.,  1.  c,  n.  144. 


in  Criminal  Causes.  2 1 3 

§  7.  Of  Ecclesiastical  Counter  suits  or  Charges,  also  in  the  United 
States  {De  Mutuis  Petitionibus). 

1055.  Sometimes  the  defendant,  having  received  the 
libellus  or  bill  of  complaint  brought  against  him  by  the 
plaintiff,  demands  in  turn  something  of  the  plaintiff,  and 
having  presented  a  bill  of  complaint  to  the  judge,  also  insti-. 
tutes  an  action  against  the  plaintiff  himself.  This  counter- 
action {reconvention  is  called  in  canon  law  mutua  petitio, 
because  the  reciprocal  demand  or  complaint  of  the  defend- 
ant causes  two  mutual  or  reciprocal  complaints  or  actions 
to  arise.  What,  then,  is  meant  by  a  counter-complaint  or 
mutua  petitio  or  reconventio  ?  It  is  an  act  whereby  the  de- 
fendant, having  received  and  read  the  libellus  or  complaint 
(with  us,  in  trials  before  Commissions  of  Investigation,  the 
statement  pro  causa,  sent  the  defendant  with  the  citation ')  of 
the  plaintiff,  in  turn  makes  a  demand  upon  or  complaint 
against  him,  and  that  before  the  same  judge  and  during  the 
same  trial.'  Observe  that  the  plaintiff,  so  far  as  concerns 
the  counter-complaint  brought  against  him  by  the  defendant, 
becomes  subject  to  and  is  triable  by  the  judge  in  the  case, 
even  though  he  would  otherwise  not  fall  under  the  latter's 
jurisdiction.^ 

1056.  Q.  In  what  causes  is  a  defendant  allowed  to  insti- 
tute a  counter-action,  or  make  a  counter-charge,  in  ecclesi- 
astical tribunals? 

A.  Generally  speakmg,  in  all  causes  which  are  not  ex- 
pressly excepted  by  law — i.e.,  by  the  sacred  canons,  or  by  the 
Roman  law  as  adopted  by  the  sacred  canons.  Speaking  in 
particular,  a  counter-action  may  be  instituted  (<?)  in  all  civil 
causes ;  {B)  not  only  in  formal  or  solemn  trials,  but  also  in  sum- 

'  Instr.  S.  C.  de  P.  F.  cit.,  §§  2,  4. 

*  Ex.  cap.  2,  de  Mut.  pet.  (ii.  4);  L.  14,  C.  de  Jud.  et  inter!,  (vii.  45);  Schmalzg., 
1,  2,  t.  4,  n.  I.  *  Reiff.,  1.  2,  t.  4,  n.  5. 


214  Of  the  Ordinary  Canonical  Trial 

mary  causes — i.e.,  in  causes  where  the  mode  of  procedure  is 
summary;'  {c)  even  where  the  subject-matter  of  the  coun- 
ter complaint  is  of  an  entirely  different  nature  from  that 
of  the  plaintiff's  action  or  complaint.' 

1057.  ^^  said  above,  in  all  civil  causes.  We  now  ask  : 
Can  a  counter-charge  be  made  by  a  defendant  in  a  criminal 
cause?  We  distinguish  between  four  kinds  of  criminal 
causes :  i.  Either  a  person  who  stands  civilly  charged  with 
a  crime  wishes  in  turn  to  accuse  the  plaintiff  or  prosecution 
criminally  of  a  crime  ;  2,  or,  one  who  is  criminally  charged 
desires  to  make  a  criminal  counter-complaint  civilly  ;  3,  or 
a  person  who  is  accused  civilly  wants  to  bring  a  civil  coun- 
ter-action ;  4,  or,  finally,  a  defendant  who  stands  criminally 
accused  of  crime  wishes  also  in  turn  to  accuse  his  accuser  or 
opponent  criminally. 

1058.  In  the  first  case,  the  counter-charge  or  complaint  is 
allowed.  Because  a  criminal  cause  is  privileged  and  takes 
precedence  of  any  civil  cause.  Hence,  in  the  case,  the  civil 
cause  of  the  plaintiff  cannot  be  tried  or  decided  until  after 
the  criminal  charge  made  by  the  defendant  has  been  adjudi- 
cated.' In  the  second  case,  no  counter-complaint  is  admis- 
sible :  since  the  criminal  complaint,  being  of  greater  impor- 
tance (as  the  common  good  of  the  Church  requires  that 
crimes  shall  be  punished),  takes  precedence  of  the  civil.*  In 
the  third  case,  the  defendant  can  bring  a  counteraction.  In 
the  fourth  case,  the  defendant  cannot,  generally  speaking, 
prefer  a  counter-charge.  In  other  words,  in  a  purely  crimi- 
nal cause, — i.e.,  where  a  defendant  stands  criminally,  not 
merely  civilly,  charged  with  a  crime, — the  defendant  or  per- 
son so  accused  cannot,  generally  speaking,  bring  a  criminal 

•  Ex  Clem.  2,  de  V.  S.,  §  Verum  de. 

'  L.  Praeses  i  flf.  de  Var.  et  extraord.  cognit. ;  Schmalzg.,  1.  c,  n.  9. 
'  L.  3,  C.  de  Ord.  cognit.  (3.  8);  Schmalzg.,  1.  c,  n.  11. 

*  L.  4,  C.  de  Ord.  cogn. ;  L.  Consensisse   2   ff.  de  Jud.  (5.  i),  §  5,  Sed  et  si 
agant. 


in  Criminal  Causes.  215 

counter-complaint  against  the  plaintiff  or  prosecution.  Thus 
Ulpianus  elegantly  says :  "  Si  quis  reus  factus  est,  purgare 
se  debet :  nee  ante  potest  accusare  quam  fuerit  excusatus. 
Constitutionibus  enim  observatur,.  ut  non  relatione  criminum, 
sed  innocentia  reus  purgetur."  ' 

1059.  ^^  said,  speaking  of  the  fourth  case,  generally  speak- 
ing;  for  even  in  purely  criminal  causes  a  person  may  institute 
a  counter-criminal  complaint,  in  ecclesiastical  courts,  chiefly 
in  these  cases:  i.  Where  he  prosecutes  or  asks  redress  for 
injuries  inflicted  upon  himself  or  persons  belonging  to  him. 
2.  Where  the  counter-charge  is  of  a  graver  character  than 
the  accusation  of  the  plaintiff  or  prosecution.^  3.  Where  the 
crimes  are  interlinked  or  connected  with  each  other.  In  this 
case,  any  crime  whatever,  even  though  much  less  serious  than 
that  with  which  the  person  making  the  counter-complamt 
stands  charged,  can  form  the  basis  oi  the  counter-charge.  4. 
Finally,  a  defendant  can  prefer  a  criminal  counter-charge  of 
any  kind  whatever,  before  an  ecclesiastical  judge  who  has 
jurisdiction  over  both  parties,  the  plaintiff  as  well  as  the 
defendant — v.g.,  if  both  belong  to  the  same  bishop.^ 

1060.  Q.  In  what  other  causes  is  it  forbidden  to  make 
counter-complaints  ? 

A.  Chiefly  in  these:  i.  In  causes  of  appeal.  In  other 
words,  when  a  case  has  been  appealed,  the  judge  of  appeal 
cannot  allow  any  new  counter-charge  or  complaint  to  be 
made  before  him,  in  the  trial  of  the  appeal.  For  the  rule  is, 
that  he  cannot  permit  any  entirely  new  issue  to  arise  during 
the  appeal,  but  should  confine  himself  to  what  was  advanced 
during  the  trial  in  the  first  instance.  2.  In  causes  of  spolia- 
tion or  unjust  deprivation  {in  caiisis  spolii) ;  that  is,  in  causes 
where  a  person  complains  of  having  been  unjustly  deprived 
of  a  right  or  possession, — v.g.,  an  ecclesiastical  office  or  bene- 
fice,— and  asks  to  be  reinstated.     In  such  cases  the  person 

'  L.  5  ff.  de  Publ.  Jud.  (4S.  i).  «  L.  19,  C.  (9.  i);  Can.  2,  C.  3,  Q.  11. 

'  Schmalzg.,  1.  c,  n.  11. 


2i6  Of  the  Ordinary  Canonical  Trial 

against  whom  the  complaint  of  spoliation  or  unjust  depriva- 
tion  is  made  cannot  make  a  counter-complaint,  but  must, 
before  all  else,  reinstate  the  complainant,  and  then,  but  not 
before,  can  the  latter  be  compelled  to  answer  any  counter- 
charge made  against  him.  3.  The  plaintiff,  against  whom  a 
counter-complaint  has  been  made,  cannot  in  turn  also  insti- 
tute a  counter-charge,  lest  there  be  no  end  to  litigations.  For 
it  is  the  plaintiff's  duty  to  embody  all  his  grievances  or 
charges  in  his  original  complaint  or  charge.' 

106 1.  Q.  What  are  the  effects  of  a  counter-action  ? 

A.  Chiefly  these:  i.  That  it  extends  or,  so  to  say, 
stretches  the  jurisdiction  of  the  judge  {prorogatio  juris- 
dictionis) ;  because  the  plaintiff  against  whom  the  counter- 
complaint  is  instituted  becomes  subject  to  the  judge  before 
whom  the  counter-complaint  is  made,  in  such  manner,  that 
even  though  he  does  not  otherwise  fall  under  this  judge's 
jurisdiction, — v.g.,  if  the  judge  is  a  bishop,  and  the  plaintiff 
in  the  case  is  an  ecclesiastic  belonging  to  the  diocese  of  a 
different  bishop, — he  nevertheless,  so  far  as  the  counter- 
complaint  is  concerned,  becomes  subject  to  and  triable 
by  such  judge.^  2.  That  both  cases — i.e.,  the  complaint 
of  the  plaintiff  and  the  counter-complaint  of  the  defend- 
ant— must  be  tried  simultaneously,  and  adjudicated  or 
decided  by  one  and  the  same  sentence.  The  mode  of  this 
simultaneous  procedure  is  this  :  After  the  defendant  has  re- 
ceived the  plaintiff's  bill  of  complaint,  and  the  latter  in  turn 
that  of  the  defendant's  counter-complaint,  the  latter  must 
first  put  in  his  plea  {litis  contestatid)  to  the  plaintiff's  bill,  and 
then  the  plaintiff  his  plea  to  the  defendant's  counter-complaint. 
Thus  the  litis  contestatio  is  effected  both  m  regard  to  the  com- 
plaint and  the  counter-complaint.  Then  follows  the  trial, 
which  should  be  so  conducted  that  both  cases  are  tried  hand 
in  hand,  or  simultaneously,  and  decided  by  the  same  sentence." 

'  Schmalzg.,  1.  c,  n.  10.  *  lb.,  n.  12.  »  Ihu 


m  Criminal  Catises.  217 

1062.  At  what  stage  of  the  proceedings  is  the  counter- 
complaint  to  be  made,  in  order  that  it  may  have  the  above 
two  effects  ?  In  the  beginning  of  the  trial,  or  at  least  imme- 
diately after  the  litis  contestatio,  and  before  the  litigants  pro- 
ceed to  any  other  judicial  act.'  The  counter-action  may 
indeed  be  instituted  after  the  litis  contestatio,  and  at  any  time 
during  the  trial.  But,  in  such  case,  it  will  have  but  the  one 
effect  of  extending  the  judge's  jurisdiction,  but  not  that  of 
simultaneous  trial.^ 

1063.  Application  of  the  above  principles  to  the  United 
States. — That  the  principles  laid  down  above  in  reference  to 
counter-complaints  are,  in  the  main,  applicable  also  in  the 
United  States, — v.g.,  to  proceedings  or  trials  before  our  Com- 
missions of  Investigation, — there  seems  to  be  no  reason  to 
doubt.  For,  as  we  have  seen,  counter-complaints  are  admis- 
sible in  summary  causes.  Now,  our  trials  before  Commissions 
of  Investigation  partake  of  the  nature  of  summary  trials  or 
causes.  Again,  counter-charges,  as  is  plain,  are  one  of  the 
means  or  weapons  of  a  legitimate  defence.  But,  the  latter, 
as  was  seen,  is  expressly  guaranteed  by  the  Holy  See  in  our 
trials.' 

Art.  II. 

Various  Stages  of  Regular  or  Ordinary  Canonical  Criminal 
Trials,  from  the  Litis  Contestatio  to  the  Final  Sentence  ex- 
clusive. 

§  I .  Of  the  Plea  or  Contestation  of  the  Cause,  also  in  the  Utiited 
States  {De  Litis  Contestatione). 

1064.  Thus  far  we  have  spoken  of  those  acts  which,  so  to 
say,  precede  the  trial  strictly  speaking.  We  now  come  to 
those  judicial  acts  or  proceedings  which  constitute  the  pro- 

'  Cap.  I,  de  Mut.  pet.  (ii.  4);  Clem.  2,  de  V.  S.  (v.  11). 

*  Schmalzg.,  1.  c,  n.  13.  '  Instr.  S.  C.  de  P.  F.,  July  20,  1878,  §  7. 


2i8  Of  the  Ordinary  Canonical  Trial 

cess  or  trial  proper.  Of  these,  the  first  is  the  contestation  of 
the  cause  {litis  contestatio),~-ca\\ed  in  our  secular  courts,  the 
plea  or  joining  of  issue, — by  which  the  trial  is  in  reality 
begun.  When  the  defendant,  having  been  duly  cited,  and 
having  received  the  libelhis,  comes  into  court  or  before  the 
judge,  it  becomes  the  duty  of  the  plaintiff  to  repeat  before 
the  judge  the  allegations  contained  in  his  statement  or  bill  of 
complaint.  To  this  the  defendant  must  plead  or  answer.  If 
he  simply  and  unqualifiedly  admits  the  plaintiff's  allegations, 
the  cause  is  by  that  very  fact  or  confession  terminated  in 
the  plaintiff's  favor. 

1065.  But  if  he  denies  them,  either  in  whole  or  in  part, 
and  is  willing  to  repel  or  refute  them  in  court — i.e.,  contest 
the  case — rather  than  yield,  the  cause  is  said  to  be  contested 
{lis  contestata),  or  the  issue  joined.  Hence  the  contestation 
of  the  cause  consists  in  the  plaintiff's  (prosecution's)  affirma- 
tion or  statement,  and  its  denial  or  contradiction  by  the  de- 
fendant, made  in  court  or  before  the  judge  {injure),  prelimi- 
nary to  the  trial  proper.  Thus  Pope  Gregory  IX.  says: 
"  Cum  .  .  .  per  petitionem  in  jure  propositam,  et  responsio- 
nem  secutam,  litis  contestatio  fiat."  *  We  say,  "  in  court — in 
Jure ;"  for  both  the  plaintiff's  statement  and  the  defendant's 
answer  or  plea  must  be  made  injure — i.e.,  in  court,  not  out 
of  it. 

1066.  Q.  Is  the  contestation  of  the  cause  required  in  all 
ecclesiastical  trials  ? 

A.  It  is,  as  a  rule;  and  that  in  such  manner  that  if  it  is 
omitted  in  formal  or  ordinary  canonical  trials,  the  whole 
trial  or  entire  proceedings  are  null  and  void,"  even  though 
the  judge  or  litigants  should  consent  to  its  omission.  In 
fact,  it  is  the  basis,  corner-stone,  or  foundation  of  the  whole 
trial.     Its  object  is  to  fix  clearly  the  points  of  dispute  or  con- 

'  Cap.  un.  de  Lit.  cont.  (ii.  5);  cf.  Reifif.,  1.  2,  t.  5,  n.  2,  5. 

'  Ex  cap.  un.  de  Lit.  cont.;  cap.  i,  2,  Ut  lit.  noncont.  (ii.  6);  Reifif.,  1.  c,  n.  3. 


m  Criminal  Causes.  219 

test  between  the  contending  parties.  Now,  as  is  evident,  in 
order  to  avoid  confusion,  it  is  very  useful,  nay,  even  neces- 
sary, apart  from  the  law  of  the  Church,  to  have  the  points  or 
questions  at  issue — that  is,  the  complaint  or  charge  which 
is  to  be  tried — clearly  stated  or  laid  down  in  the  very  begin- 
ning of  the  trial  or  proceedings,  so  that  there  will  remain  no 
doubt  whatever  as  to  the  question  at  issue.'  Otherwise,  it 
will  easily  happen  that  neither  the  plaintiff  (or  prosecution) 
nor  the  defendant  will  know  precisely  what  is  the  object  of 
the  trial,  and  will  consequently  simply  lose  their  time  and 
money.''  For  this  reason  also,  it  is  plain  that  while,  as  we 
shall  presently  note,  no  formal  litis  contestatio  is  requisite  in 
certain  causes,  yet  something  similar  or  equivalent  to  it  is 
always  needed. 

1067.  We  said  above,  as  a  rule ;  for  there  are  several  ex- 
ceptions. Thus  no  formal  contestation  is  necessary  in  the 
following  cases :  i.  In  summary  causes  or  trials.'  We  say, 
necessary  ;  for  it  may  take  place.  2.  In  appeals  ;  because  the 
contestation  made  before  the  judge  or  court  of  the  first  in- 
stance is  suflficient."  3.  In  notorious  causes  ;  for  no  formality 
whatever  is  required  in  these  causes.  4.  In  causes  adjudi- 
cated before  the  Pope.  5.  In  all  causes  where  no  libellus  is 
required.^  Observe  that  in  these  cases,  where  no  formal 
contestation  is  requisite,  the  first  judicial  act,  which  would 
otherwise  take  place  immediately  after  the  litis  contestatio,  is 
considered  as  and  has  the  force  of  the  litis  contestatio!" 

1068.  Is  the  litis  contestatio  required  not  only  in  civil,  but 
also  in  criminal  causes  ?  It  is  ;  though  in  this  case  the  cause 
is  said  to  be  contested — i.e.,  the  litis  contestatio  takes  place 
when  the  judge  in  the  examination  preliminary  to  the  trial, 
or  at  its  opening,  interrogates  the  accused  as  to  his  guilt,  and 

'  Molitor,  Eccl.  Trials  of  Ecclesiastics,  pp.  148,  149. 

*  Cf.  Permaneder,  Manual  of  Canon  Law,  p.  502. 

^  Clem.  2,  de  V.  S.  (v.  11).      *  Cap.  58,  de  Appell.        ^  Schmalzg.,  1.  c,  n.  4. 

*  Glossa,  V.  Absentia,  in  cap.  i,  de  Elect.,  in  6  (i.  6);  Reiff.,  1.  c,  n.  4. 


2  20  '  Of  the  Ordinary  Canonical  Trial 

the  latter  denies  it,  in  whole  or  in  part.'  Whether  and  when 
the  accused  is  bound  to  confess  his  guilt  in  answer  to  the 
judge's  questions,  will  be  seen  later. 

1069.  Q.  Is  a  formal  contestation  of  the  cause  required 
in  proceedings  or  trials  as  conducted  before  Commissions  of 
Investigation  in  the  United  States? 

A.  It  is  not.  The  reason  is,  that  these  proceedings  are 
summary,  and  moreover  do  not  constitute  a  canonical  trial 
or  process  in  the  strict  sense  of  the  term.  We  said  in  our 
question, /<?r;;z^//  for,  as  we  have  seen,  something  similar  or 
equivalent  to  a  plea  or  contestation  is  required  in  every 
trial,  no  matter  of  what  kind,  and  consequently  also  in  pro 
ccedings  before  our  Commissions  of  Investigation.  In  other 
words,  in  all  ecclesiastical  trials  or  judicial  proceedings, 
whether  they  be  canonical  trials  proper  or  not,  and  conse- 
quently also  in  proceedings  or  trials,  with  us,  as  established 
b}^  the  S.  C.  de  P.  F.,  in  its  Instruction  of  July  20,  1878,  care 
should  be  taken  that,  in  civil  causes,  the  point  or  matter  in 
dispute,  and  in  criminal  causes  the  charges  against  the  accused, 
be  clearly  and  fully  defined  and  stated  before  the  trial 
begins."  Thus  confusion  and  delay  will  be  avoided.  Hence 
also  it  would  be  well  for  the  vicar-general  or  other  priest 
acting  as  the  bishop's  representative,  to  draw  up  the  state- 
ment or  charges  against  the  defendant,  to  be  read  before  the 
Commission  of  Investigation,  in  this  manner:  First,  let  him 
give,  in  his  paper,  a  summary  statement  of  the  charges  and 
specifications,  or  if  there  is  question  of  civil  causes,  an  outline 
or  epitome  of  the  case.  Next  let  him  take  up  the  charges  and 
specifications,  one  by  one,  and  fully  and  clearly  prove  them, 
by  the  testimony  of  witnesses,  documents,  etc.,  etc.  The 
accused  or  defendant  should  likewise,  in  his  defence  before 
the  Commission,  clearly  and  categorically  answer  the  oflficial's 
statement.  All  extraneous  matter  should,  of  course,  be  care- 
fully eschewed. 

>  Bouix,  de  Jud.,  vol.  ii.,  p.  192.     »  Cf.  Instr.  S.  C.  de  P.  F.  cit.,  §  4,  Per  litteras. 


in  Criminal  Causes.  221 


§  2.  Positions  and  Articles  {Positiones,  Articuli). 

1070.  The  so-called  positions  and  articles  are  akin  to  the 
contestation  of  the  cause,  and  as  a  rule  follow  immediately 
after  it.  To  a  certain  extent,  they  serve  the  same  purpose 
as  the  contestation — namely,  to  fix  clearly  the  questions  at 
issue,  or  the  charges  to  be  proved.  What,  then,  is  meant 
by  positions  and  articles?  Positions  {positiones)  are  certain 
brief  and  concise  or  categorical  questions,  assertions,  specifi- 
cations or  counts,  pertaining  to  the  cause  on  trial,  which  one 
of  the  litigants  (usually  the  plaintiff,  and  in  criminal  causes 
the  diocesan  prosecuting  official)  submits  to  the  judge,  with 
the  request  that  the  other  litigant  (usually  the  defendant)  be 
compelled  to  answer  categorically  yes  or  no,  or  whether  he 
admits  or  denies  them,  and  that  for  the  purpose  of  being  re- 
lieved from  the  burden  of  proving  those  points  or  specifica- 
tions that  are  admitted  by  the  opponent.' 

107 1.  Positions  may  be  made  either  in  the  form  of  ques- 
tions, or  positive  affirmations  or  assertions.  The  following 
is  a  specimen  of  a  position  in  the  form  of  a  positive  statement : 
I  affirm  or  charge  that  thou,  Titius,  the  defendant,  hast  killed 
Caius ;  that  thou  didst  perform  the  deed  on  such  a  day,  m 
such  a  place,  with  a  sword ;  that  thou  didst  know  him  to  be 
an  ecclesiastic,  etc.,  etc.  The  following,  on  the  other  hand,  is 
a  sample  of  an  interrogative  position :  Did  you,  Titius,  kill 
Caius?  Did  you  kill  him  at  such  a  place,  etc. ;  did  you  not 
know  him  to  be  an  ecclesiastic,  etc.  ?^  Those  positions  which 
are  denied  by  the  opponent,  and  which  consequently  must 
be  proved  by  the  one  who  has  submitted  them,  are  called 
articles  [articiili),  the  others  simply  positions. 

1072.  From  what  has  been  said,  the  object  and  utility  of 
positions  will  at  once  be  seen.     For  if  the  diocesan  prose, 

'  Glossa,  in  cap.  i,  de  Confessis,  in  6°  (ii.  9),  v.  Statuimus;  Schmalzg.,  1.  2, 
t.  5,  n.  5;  Bouix,  de  Jud.,  vol.  ii.,  p.  207.  *  Cf.  Glossa,  cit. 


222  Of  the  Ordinary  Canonical  Trial 

cuting  official,  for  instance,  proposes  ten  such  specifications 
or  categorical  questions,  and  the  defendant  admits  six,  and 
only  contends  that  four  are  false,  it  will  be  necessary  to 
prove  only  the  four,  as  the  other  six  are  established  or 
proved  by  the  defendant's  own  confession,  which  is  the  best 
possible  proof. 

1073.  Do  these  positions  and  articles  still  obtain,  also  in  the 
United  States  ?  By  virtue  of  the  positive  canon  law  these 
positions  and  articles  (in  criminal  causes  they  are  called 
chapters  or  capitula)  still  obtain  and  form  part  of  canonical 
trials,  even  though  not  solemn  or  formal,  but  merely  sum- 
mary/ We  s?iyy  positive  canon  law ;  for,  as  Bouix,'  Craisson, 
and  other  canonists  testify,  these  positions  are  no  longer 
formally  in  use,  at  least  in  a  number  of  ecclesiastical  courts, 
having  been  abolished  by  legitimate  custom  to  the  contrary. 
Observe  we  S2iy ,  formally  in  use  ;  for  they  are  still  informally 
or  substantially  in  vogue  ;  since  the  judge,  in  examining  the 
litigants  or  the  accused,  in  the  preliminary  hearing,  substan- 
tially puts  at  the  present  day  the  same  questions  as  would  be 
embodied  in  positions.'  In  this  informal  way  they  certainly 
also  may  be,  in  fact  are,  employed  with  great  advantage  in 
trials  or  proceedings  before  Commissions  of  Investigation 
in  the  United  States. 

§  3.  Oaths  administered  in  Ecclesiastical  Trials  to  the  Princi- 
pals or  Litigants  themselves. 

1074.  Note. — In  speaking  of  the  positions  and  articles, 
before  the  oaths  taken  by  the  litigants,  we  have  somewhat 
anticipated  the  course  of  the  trial.  For  one  of  the  oaths,  of 
which  we  shall  now  treat,  is  taken  immediately  after  the  con- 
testation, and  directly  before  the  positions  and  articles  are 
submitted."    Again  we  observe,  that  the  oaths,  of  which  we 

'  Clem.  Saepe  2,  de  V.  S.  (v.  11);  cap.  I,  2  in  6°  (ii.  9);  Bouix,  1.  c,  p.  210. 
*  L.  c.  *  Molitor,  1.  c,  p.  251.  *  Ex  cap.  2  in  V  (ii.  9). 


in  Criminal  Causes.  ^223 

here  speak,  are  taken  by  the  litigants  themselves, — both 
plaintiff,  or  prosecution,  and  defendant, — but  not  by  the  wit- 
nesses. The  oath  administered  to  the  latter  is  altogether  dif- 
ferent.    We  shall  now  briefly  describe  the  oaths  in  question. 

1075.  The  nature  and  character  of  these  oaths  will  be 
best  understood  by  simply  describing  the  course  of  pro- 
cedure. After  the  contestation  has  taken  place,  and  before 
any  testimony  is  taken,'  the  litigants — that  is,  both  the  plain- 
tiff, or  prosecution,  and  defendant — are  put  under  oath  ;  in 
other  words,  the  plaintiff  swears  that  he  has  begun  and  con- 
tinues the  cause  in  good  faith,  and  without  malice  or  chi- 
canery {caluinnia),  and  the  defendant  that  he  contests  it, 
believing  he  has  a  right  to  do  so.  This  oath  is  called  j'ura- 
mentum  calumniae,  the  word  caliimnia  meaning  here,  or  in 
judicial  matters,  deceit  or  chicanery.  This  oath  is  general  in 
its  character  and  application — that  is,  it  refers  to  all  the  acts 
of  the  litigants  in  the  course  of  the  entire  trial.  In  other 
words,  by  it  the  parties  pledge  themselves  to  act  in  good 
faith  during  the  whole  trial.  Hence  this  oath  is  justly  de- 
fined to  be  that  by  which  the  litigants  swear  that  they  have 
begun  and  will  prosecute  or  continue  their  cause  in  good 
faith  and  without  cahtmnia — i.e.,  chicanery  or  wiles.' 

1076.  The  oaths  called  rQsr^eci\Ye\y  juramentum  veritatis 
zxid  juramentum  malitiae  are  akin  to  the  oath  of  calumnia  just 
described,  ^y  ih.Q  j'liramentum  veritatis  the  parties — i.e.,  the 
plaintiff  or  defendant — swear  they  will  tell  the  truth  in  a 
particular  matter  or  point  coming  up  during  the  trial.  By 
the,  juramentum  malitiae  they  swear  they  will  not  act  mali- 
ciously in  this  or  that  instance.  The  difference  between  the 
juramentum  caluinniae  and  the  oaths  veritatis  and  malitiae  is 
apparent  from  their  respective  definitions.  The  juramenttim 
calumniae  is  general  and  refers  to  the  whole  cause,  and  is 

*  Schmalzg.,  1.  2,  t.  7,  n.  i. 

*  L.  I,  2,  C.  de  Jurej.  prop.  cal.  (ii.  59);  cap.  i,  de  Jur.  cal.  (ii.  7);  ib.  Glossa, 
V.  Calumnia;  Schmalzg.,  1.  c,  n.  2. 


224  Of  the  Ordinary  Canonical  Trial 

therefore  taken  at  the  beginning — i.e.,  immediately  after  the 
litis  contestatio — and  only  onc^.  The  other  two  are  particu- 
lar,— i.e.,  refer  only  to  this  or  that  act  during  the  trial, — and 
may  therefore,  and  are,  taken  during  any  part  of  the  trial, 
and  as  often  as  occasion  requires. 

1077.  It  is  certain  that  both  the  oaths  of  calumnia  and 
malitiae  are  now  entirely  obsolete  in  ecclesiastical  courts, 
being  no  longer  taken.  The  oath  to  tell  the  truth  is  still  in 
use  in  ecclesiastical  courts,  though  it  can  no  longer  be  ad- 
ministered in  criminal  causes  to  the  accused  when  criminally 
examined.  This  was  enacted  by  Pope  Benedict  XIII.  in  the 
Roman  Council  held  in  1725.'  Although  this  council  is  but 
a  provincial  council,  and  therefore  not  obligatory  out  of 
the  Roman  province,  yet  its  prohibition  is  observed  every- 
where, and  can  be  considered  as  a  common  law  of  the 
Church.*  Neither  can  the  oath  {Juramentuin  veritatis)  be 
administered  to  a  defendant  in  grave  civil  causes ;  since  the 
latter  are,  in  canon  law,  placed  on  an  equal  footing,  owing  to 
their  gravity,  with  criminal  causes.  In  proceedings  or  trials 
before  our  Commissions  of  Investigation,  none  of  the  above 
oaths  is  administered  either  to  the  defendant  or  the  plain- 
tiff, or  the  bishop's  official  who  represents  the  plaintiff  or 
prosecution  in  criminal  causes.V 

§  4.  Of  Delays  which  occur  during  the  Trial  {De  Dilationibus). 

1078.  After  the  contestation  has  taken  place  and  the  oath 
of  calumnia  been  administered  (where  it  is  still  in  use),  and 
the  positions  put  and  answered,  the  litigants  usually  ask 
for  a  delay,  or  for  time  to  make  out  their  case.  In  other 
words,  the  plaintiff  or  prosecution  generally  asks  for  time  to 
complete  his  proofs,  etc.,  and  the  defendant  for  time  to  pre- 
pare   his   defence.     Nay,   delays   may   and    do  occur   even 

'  Tit.  13,  cap.  2:  «  Craiss.,  n.  5931. 

» Arg.  ex  Instr.  cit.,  S.  C.  de  P.  F.,  July  20,  1878,  §  11,  Non  requiratur. 


in  Crinimal  Causes.  225 

previous  to  the  contestation.  Hence  this  seems  to  be  the 
proper  place  to  say  a  few  words  in  regard  to  delays  that 
may  happen  in  judicial  proceedings,  also  before  our  Com- 
missions of  Investigation. 

1079.  What  are  judicial  delays  ?  As  here  understood,  a 
judicial  delay  is  a  just,  proper,  or  sufficient  interval  or  space 
of  time  granted  to  the  plaintiff  (prosecution)  or  defendant 
for  the  purpose  of  enabling  him  to  prepare  for  and  perform 
some  judicial  act  more  conveniently.'  Of  these  delays  {dila- 
tiones  judicialcs)  some  are  given,  i,  by  the  law — i.e.,  by  the 
law  of  the  Church,  or  the  Roman  law  as  adopted  by  the 
Church,  or  by  statute,  or  also  by  custom,  and  are  called 
legal  delays  [dilationes  legalcs).  Thus  ten  days  are  granted 
by  the  sacred  canons  for  appealing  against  a  sentence,  so 
that  it  may  not  pass  into  res  judicata^  2.  Others  take  place 
by  the  mutual  consent  of  the  contending  parties.  They  are 
styled  conventional  delays  {dilationes  conventionales),  and  are, 
within  due  bounds,  allowed  by  the  Church.^  3.  Others, 
finally,  are  given  by  the  judge,  and  termed  dilationes  arbi- 
trariae — i.e.,  delays  granted  at  the  discretion  of  the  judge, 
according  as  circumstances  may  demand.'' 

1080.  Delays  may  occur  during  any  stage  of  the  trial. 
Hence  they  are  divided  into  three  kinds,  according  as  they 
happen  {a)  during  the  first  part  of  the  trial  or  proceedings — 
i.e.,  from  the  citation  to  the  contestation  inclusive;  ib)  or 
during  the  second  part— namely,  from  the  contestation  (or 
its  equivalent)  to  the  pronouncing  of  final  sentence  exclu- 
sive ;  ic)  or  during  the  third  and  final  stage — i.e.,  from  the 
sentence  till  its  execution.^  We  shall  now  explain  these 
three  classes. 

1 08 1.  I.  Delays  which  occur  before  the  contestation. — These 
delays  refer  directly  or  indirectly  to  the  defendant's  appear- 

'  Reiff.,  1.  2,  t.  8,  n.  2.  '  Cap.  15,  de  Sent,  et  re  jud.  (ii.  27). 

^  Cap.  28,  de  Off.  jud.  del.  (i.  29),  §  Cum  autem;  ib.  Glossa. 

■»  L.  72  ff.  de  Jud.  (v.  i.);  cf.  Reiff.,  1.  c  ,  n.  n-14.       ^  Reiff.,  1.  c.,  n.  10. 


226  Of  the  Ordinary  Canonical  Trial 

ance  in  court,  upon  due  citation,  being  conceded  to  a  person 
who  for  just  cause  either  cannot  or  need  not  appear  before  the 
judge  at  the  time,  place,  or  in  the  manner  specified  in  the  cita- 
tion. Of  these  delays,  some  are  citatory,  others  deliberative, 
others  finally  recusativ^e.  Citatory  delays  {dilationc  citatoriac) 
are  those  which  are  given  a  defendant,  who  is  cited,  to  enable 
him  to  appear  in  court  on  the  day  specified  in  the  citation. 
By  the  general  law  of  the  Church,  as  we  have  seen,  ten  days 
must  intervene  between  each  of  the  three  simple  citations, 
or  thirty  when  there  is  but  one  peremptory  citation.  This 
rule,  however,  is  subject  to  certain  modifications.  For, 
where  there  is  just  cause,  this  time  may  be  prolonged  or 
limited  by  the  judge,  provided  always  that  the  defendant  has 
sufficient  time  not  only  to  appear,  but  also  previously  to  de- 
liberate upon  the  case,  consult  advocates,  experts,  etc.  Other- 
wise another  delay  would  have  to  be  granted  for  delibera- 
tion, and  if  refused  by  the  judge,  there  would  be  just  cause 
for  appeal.' 

1082.  Deliberative  delays  {dilationes  deliberatoriae)  are 
those  which  are  allowed  the  defendant  after  the  bill  of  com- 
plaint or  charges  has  been  served  upon  him,  for  the  purpose 
of  enabhng  him  to  consider  whether  he  will  contest  the  case 
or  not.  A  delay  of  twenty  days  is  conceded  by  the  common 
law  of  the  Church  for  this  purpose.'  Sometimes,  however, 
no  such  delay  is  granted — namely,  when  the  person  cited  has 
been  fully  instructed  as  to  the  nature  of  the  complaint  by  the 
letters  of  citation  ; '  i.e.,  where  these  letters  are  accompanied 
by  a  copy  of  the  libellus  or  complaint,  or  by  a  specific  state- 
ment of  the  complaint  or  charges.* 

1083.  From  this  it  is  apparent  that,  as  a  rule,  these  de- 
liberative delays,  preceding  the  trial,  cannot  always  be 
claimed  in  the  United  States.     For  the  oft-quoted  Instruc- 


'  Cap.  I,  de  Dilat.  (ii.  8);  Schmalzg.,  1.  c,  n.  7.      «  Novella  53,  cap.  3,  §  r. 
»  Cap.  2,  de  Dilat.  (ii.  8).  *  lb.  Glossa,  v.  Plene. 


in  Criminal  Causes.  227 

tion  of  the  S.  C.  de  Prop.  Fide,  dated  July  20,  1878,  ordains 
that  except  where  prudence  forbids  it,  as  in  the  case  of 
occult  crime,  the  bishop  shall  send  to  the  accused,  together 
with  the  citation,  a  full  and  specific  statement  of  the  charges 
or  complaint,  which  will  enable  the  latter  to  understand  the 
nature  of  the  case  fully.  Here  are  the  words  of  the  Instruc- 
tion :  "  Per  litteras  etiam  rectorem  missionarium  .  .  .  advocet, 
exponens  nisi  prudentia  vetat,  uti  in  casu  criminis  occulti, 
causam  ad  dejectionem  moventem,  per  extensum." '  We 
say,  as  a  rule ;  since,  if  the  time  fixed  in  the  citation  for 
appearing  is  not  sufficiently  long  to  enable  the  accused  to 
consult  advocates  and  prepare  his  defence,  or  if  the  state- 
ment pro  causa  sent  the  accused  is  not  sufficiently  clear,  full, 
and  explicit,  a  further  reasonable  delay  ought  to  be  granted." 
Otherwise  the  defendant  has  legitimate  cause  for  appeal.' 
Moreover,  where,  as  in  the  case  of  an  occult  crime,  the  cita- 
tion with  us,  need  not  and  is  not  accompanied  by  a  full  and 
specific  statement  of  the  charges,*  the  accused,  on  appearing 
before  the  Commission  of  Investigation  in  obedience  to  the 
citation,  must  be  fully  informed  of  the  charges,  and  given 
time  to  prepare  his  defence. 

1084.  Finally,  recusative  and  dilatory  delays  {dilationes 
recusatoriae,  dilatoriac)  are  those  which  are  given  for  the 
purpose  of  enabling  the  parties  to  submit  and  prove  their 
recusative  and  other  dilatory  exceptions. 

1085.  II.  Delays  which  are  granted  after  the  contestation  to 
the  sentence. — These  delays  are  called  probative  {dilationes 
probatoriac),  and  are  defined  to  be  those  which  are  conceded 
to  each  of  the  litigants  to  prove  his  case — namely,  to  the 
plaintiff  or  prosecution  to  obtain  witnesses,  and  in  general 
to  prepare  the  proofs  of  the  complaint  or  charges ;  to  the 
defendant  to  enable  him  to  get  ready  for  the  defence — i.e., 


'  Instr.  cit.,  ^  4,  Per  litteras.  ^  Ex  cap.  3,  de  Dilat.  (ii.  8). 

^  Ex  cap.  I,  de  Dilat.  (ii.  8);  cf.  Schmalzg.,  1.  c.  n.  7.       *  Cf.  Instr.  cit.,  §  4. 


228  Of  the  Ordinary  Canonical  Trial 

to  obtain  witnesses,  documents,  etc'  The  duration  of  a 
probative  delay,  as  established  by  the  common  law  of  the 
Church,  is  as  follows:  Where  the  proofs  or  instruments  or 
witnesses  to  be  produced  are  in  the  same  province  (with  us. 
State)  in  which  the  trial  takes  place,  three  months  are 
granted ;  where  they  are  in  a  different  province  (with  us,  a 
different  State  of  the  Union)  which  is  near  by,  six;  when 
abroad,  or  at  a  great  distance,  nine  months."  Flowever,  at 
the  present  day,  the  duration  or  length  of  these  delays  (the 
same  holds  of  all  other  legal  delays — i.e.,  delays  given  by  the 
law  itself)  is  left  in  a  certain  measure  to  the  discretion  of  the 
judge,  provided  always  that  the  defendant  be  equally  favored 
with  the  plaintiff — i.e.,  that  as  much  time  or  delay  be  given 
to  the  defendant  as  is  given  to  the  plaintiff  or  prosecution, 
especially  as  the  law  always  favors  the  accused  or  defendant 
more  than  the.  plaintiff/  We  say,  in  a  certain  measure;  we 
mean  that  the  judge  can  limit  or  prolong  these  delays,  for 
cause,  but  not  arbitrarily." 

1086.  In  criminal  causes  (the  same  holds  of  grave  civil 
causes)  the  accused  can  be  granted  a  second  and  a  third 
probative  delay  to  enable  him  to  prepare  for  his  defence, 
but  the  prosecution  only  a  second.^  The  reason  is,  that  if 
ever  the  defendant  should  be  more  favored  than  the  plain- 
tiff or  prosecution,  it  should  be  in  criminal  causes,  where  he 
has  so  much  at  stake,  and  where,  consequently,  every  facility 
should  be  afforded  him  for  defending  himself.*  Besides,  the 
prosecution  has  always  this  advantage,  that  it  can  select  its 
own  time,  and  begin  the  criminal  procedure  only  when  it  is 
perfectly  ready  and  has  collected  all  the  necessary  proofs ; 
whereas  the  defendant  has  no  such  advantage. 

1087.  Application  of  the  preceding  principles  to  the  United 
States. — The  above  principles  concerning  delays  apply  in  a 

'  Cap.  I  (ii.  8);  L.  i  et  2,  C.  de  Dilat.  (iii.  11).  «  L.  i,  C.  de  Dil. 

*  Reg.  32,  Jur.ine";  Schmalzg.,  1.  c,  n.  13.     *  Glossa,  in  cap.  i,de  Dil.,  v.  Plene. 

'  L.  10  ff.  de  Feriis  (ii.  12).  •  Schmalzg.,  1.  c,  n.  15. 


in  Criminal  Causes.  229 

measure  also  to  proceedings  or  trials  before  our  Commissions 
of  Investigation.  It  is  true  that  these  trials  are  of  a  sum- 
mary character,  and  that  in  summary  causes  or  trials  the 
judge  should  cut  off  all  avoidable  and  unnecessary  delays.' 
We  say,  avoidable  delays ;  for  reasonable  delays  must  be 
granted  even  in  summary  trials,'  and  consequently  also  in 
proceedings  before  our  Commissions  of  Investigation,  In 
fact,  these  delays,  when  reasonable,  form  part  of  a  just 
defence,  which  can  never  be  refused.  We  have  just  said 
that  in  summary  causes  the  judge  should  endeavor  to  pre- 
vent all  avoidable  delays.  Hence,  also,  it  is  ordained  in 
the  Instruction  of  the  S.  C.  de  P.  F.,  dated  July  20,  1878, 
that  in  this  country  the  bishop  shall  send  to  the  accused, 
together  with  the  citation,  a  full  and  specific  statement  of 
the  charges,"  and  that  the  accused  shall  come  befoi^e  the 
Commission  with  his  defence  already  prepared,  at  least  as 
far  as  possible,  so  as  to  avoid  all  unnecessary  delay.  When, 
therefore,  a  defendant,  in  a  trial  before  our  Commissions  of 
Investigation,  finds  it  useful,  even  after  the  prosecution  has 
closed, — i.e.,  where  the  bishop's  official  has  read  the  state- 
ment/r^*  causa  and  submitted  his  proofs,— to  ask  for  a  delay, 
or  even  several  delays  (t'.^.,  where  the  defendant  has  not 
been  fully  informed  beforehand  of  all  the  charges  against 
him),  to  prepare  more  fully  for  his  defence,  his  request 
should  be  granted  by  the  Commission. 

1088.  III.  Delays  granted  from  the  sentence  to  its  execution 
inclusive. — These  delays  are  of  three  kinds:  i.  Those  which 
are  given  to  enable  the  parties — prosecution  and  defence — 
to  prepare  their  final  summing  up  [dilationes  allegatoriae). 
For  the  judge  (we  speak  always  of  the  ecclesiastical  judge), 
having  heard  all  the  testimony  on  both  sides,  should,  before 
he  proceeds  to  pass  final  sentence,  ask  the  parties  w^hether 


'  Clem.  Saepe  2,  de  V.  S.  (v.  ii). 

-  lb.  Glossa,  V.  Amputet,  et  v.  Dilatorias.  ^  Instr.  cit.,  §  4,  Per  litteras. 


230  Of  the  Ordinary  Canonical  Trial 

they  wish  to  submit  or  say  anything  else ;  and  if  either  an- 
swers in  the  affirmative,  a  delay  of  thirty  days  is  given  him 
by  the  judge  to  prepare  his  final  arguments.'  This  delay 
may  be  repeated  three  times.  2.  Those  which  are  granted 
to  the  parties  to  enable  them  to  appear  in  court  and  hear  the 
final  sentence  pronounced  {dilationes  defijiitoriae).  3.  Finally, 
those  which  are  conceded  to  enable  the  party  condemned  to 
execute  or  carry  out  the  provisions  of  the  sentence  {dilationes 
executoriae.) '  These  latter  are  allowed  only  in  civil  causes ; 
for  in  criminal  causes  the  execution  of  the  sentence  is  not 
usually  delayed.  Four  months  are  generally  allowed  in 
civil  causes  to  execute  the  sentence.' 

1089.  What  are  the  effects  of  delays  ?  The  chief  effect  is 
that,  pending  the  delay,  the  office  of  the  judge  is  inoperative, 
or  wholly  at  rest,  so  far  as  concerns  the  matter  in  which  the 
delay  has  been  given,  and  nothing  is  to  be  done  or  changed 
in  this  respect  until  the  delay  has  expired  ; '  any  attempt  to 
the  contrary  being  ipso  jure  null  and  void.^  Finally,  we 
observe  that  delays  are  given,  as  a  rule,  at  the  request  of  the 
litigants  ;  though  the  judge  may  and  should  grant  them  him- 
self ,ex  officio,  when  he  deems  it  necessary.  Moreover,  no 
delay  whatever  should  be  granted  by  the  judge  to  either  the 
prosecution  or  defence,  except  in  the  presence  of  both  par- 
ties, and  upon  due  proof  being  given  that  there  is  sufficient 
reason  for  the  delay.* 

1090.  Of  judicial  holidays. — Speaking  on  the  subject  of 
judicial  delays,  we  subjoin  a  few  remarks  in  regard  to  the 
so-called  feriae,  which  partake  of  the  nature  of  judicial  de- 
lays. V>y  feriae  are  here  meant  those  days  on  which  judicial 
acts  or  proceedings  are  forbidden,  and  therefore  delayed. 
They  are  divided  into  sacred  and  profane.  The  former  are 
those  which  are  instituted  by  the  Church  for  the  worship  of 

'  Auth.  Jubemus,  C.  de  Jud.  (iii.  i).  «  Schmalzg.,  1.  c,  n.  21. 

»  Cap.  26,  de  Off.  del.       "  L.  3.  C.  de  Dilat.  (iii.  11).      *  Reiff.,  1.  c,  n.  77. 
*  L.  I,  4,  C.  de  Dilat.(iii.  11);  cf.  Schmalzg.,  1.  c,  n.  12. 


in  Criminal  Causes,  231 

God  and  in  honor  of  the  saints.  Such  are  the  Sundays  and 
hoKdays  of  obhgation.'  The  latter  are  those  which  are 
established  by  the  secular  power  for  the  temporal  wants  or 
benefit  of  the  people.  Thus,  according  to  the  Roman  law, 
the  time  of  harvest — usually  from  July  to  August — and  the 
time  of  vintage — generally  from  September  to  October — 
were  judicial  holidays  in  the  secular  courts* — i.e.,  they 
were  days  on  which  no  one  could  be  compelled  to  go  to 
trial,  lest  he  should  thus  be  disabled  from  reaping  his  har- 
vest.' These  profane  or  secular  judicial  holidays  naturally 
vary  in  different  countries.  Our  legal  holidays  in  the  United 
States  partake  of  the  character  of  judicial  holidays. 

1091.  What  are  the  fcriac  or  holidays  on  which  judicial 
proceedings  are  forbidden  in  ecclesiastical  courts  ?  i.  All 
the  sacred  holidays ;  that  is,  all  the  holidays  of  obligation 
established  by  the  Church — namely,  all  Sundays  and  holidays 
of  precept."  The  law  of  the  Church  is  that  on  these  daj^s 
all  judicial  proceedings  are,  as  a  rule,  so  strictly  forbidden, 
that  if  they  nevertheless  take  place  they  are  ipso  jure  null 
and  void,  even  though  the  litigants  should  consent  to  them. 
We  say,  as  a  rule  ;  for  where  necessity  iiicecssitas)  or  justice 
{pietas)  demands  otherwise,"  judicial  proceedings  can  take 
place,  in  ecclesiastical  courts,  on  those  days." 

1092.  2.  Even  on  all  profane  holidays, — that  is,  holidays 
instituted  formerly  by  the  civil  government  of  the  Roman 
empire, — judicial  proceedings  were  forbidden  by  the  Church, 
in  her  courts,  under  pain  of  nullity.  On  certain  profane 
holidays,  however,  the  Church  allowed  judicial  proceedings 
in  her  courts,  provided  the  parties  consented.'  For  there 
were  two  kinds  of  legal  holidays  :  {a)  Those  instituted  for 

'  Cap.  9,  de  Feriis.  (ii.  9);  L.  2  et  3,  C.  de  Dilat. 

*  Cf.  Schmalzg.,  1.  2,  t.  9.  n.  17.  ^  L.  i,  3  ff.  de  Feriis;  L.  2,  C.  de  Feriis. 

*  Cap.  Conquestus  5,  de  Feriis  (ii.  9);  Sciimalzg.,  I.  2,  t.  g,  n.  6. 

*  Cap.  Conquestus  cit. ;  ib.  Glossa,  vv.  Necessitas,  pietas. 

*  Reifif. ,  1.  2,  t.  9,  n.  36.  '  Cap.  Conquestus  cit. 


232  Of  the  Ordinary  Canonical  Trial 

the  wants  or  direct  utility  of  the  people — namely,  the  har- 
vest and  vintage  season.  On  these  days  judicial  proceedings 
could  take  place  validly  if  the  parties  consented,  since  these 
days  were  established  for  their  direct  benefit,  and  could 
therefore  be  given  up  by  them,  {b)  Those  which  were  estab- 
lished to  commemorate  some  public  event — v.g.,  a  battle 
won.  On  these  latter  legal  holidays  judicial  proceedings 
could  not  take  place,  even  by  consent  of  the  litigants. 
Whether,  at  present,  the  Church  adopts  the  legal  hohdays  of 
the  various  countries  of  the  world  as  judicial  holidays  for 
her  courts,  we  do  not  feel  competent  to  decide,  though  we 
feel  inclined  to  answer  in  the  affirmative. 

1093.  The  above  rules  concerning  ferine  or  judicial  holi- 
days apply  also  to  summary  trials  or  proceedings,  though 
with  regard  to  the  latter  trials,  Pope  Clement  V.  allows  that 
they  may  take  place,  and  that  without  the  consent  of  the  liti- 
gants, on  the  rustic  holidays,  or  during  the  harvest  and  vin- 
tage season,  but  not  on  other  legal  holidays,  nor  on  the  holi- 
days of  the  Church.'  From  all  this  it  seems  to  follow  that 
proceedings  or  trials  before  Commissions  of  Investigation  in 
the  United  States,  though  of  a  summary  character,  cannot 
take  place  on  Sundays  and  feasts  of  precept,  except  in  the 
cases  of  necessitas  or  pietas  spoken  of  above.  Nay,  it  is  even 
doubtful  whether  they  can  take  place  on  our  legal  holidays. 


§  5.  Order  to  be  observed  by  the  Ecclesiastical  Judge  when,  in 
the  Hearing  of  the  same  Cause,  several  Questions  come  up  for 
Decision  {De  Ordine  Cognitionum). 

1094.  When  the  contestation  has  taken  place,  and  the 
oath  of  calumnia  been  administered,  and  the  usual  delays 
granted,  the  parties  proceed  to  prove  their  case.  In  other 
words,  the  taking  of  the  testimony  to  prove  the  cause  is  the 

'  Clem.  Saepe  2,  de  V.  S.  (v.  11);  Reiff.,  1.  c,  n.  44. 


171  Crtmz7ial  Causes.  233 

next  step  of  the  trial.  However,  as  we  have  seen,  it  will 
frequently  happen  that,  prior  to  the  submitting  of  testimony 
in  the  main  cause,  a  defendant  makes  various  exceptions, 
which  in  turn  often  give  rise  to  two  or  more  incidental 
questions  or  causes,  to  be  decided  by  the  judge  in  the  same 
cause.  Again,  the  defendant  may  bring  a  counter-com- 
plaint against  the  plaintiff ;  and  thus  two  main  or  principal 
causes,  connected  indeed,  but  yet  distinct,  present  them- 
selves for  decision.  These  questions  must  be  decided  or 
disposed  of  in  a  certain  order;  otherwise  confusion  will  fol- 
low. We  shall  therefore  follow  the  order  of  the  decretals, 
and  treat  of  this  matter  before  we  proceed  to  discuss  the 
taking  of  testimony  in  the  main  cause. 

1095.  Q.  Which  of  the  several  questions  or  causes  arising 
from  the  exceptions  of  the  defendant  or  otherwise,  during 
the  same  trial,  must  be  discussed  or  decided  first  by  the  judge  ? 

A.  We  have  already  in  part  answered  this  question  inci- 
dentally when  we  spoke  of  exceptions,'  especially  that  of 
recusation,'  and  of  counter-complaints.'  We  shall  now  add 
the  following:  i.  That  question  or  cause  should  be  first 
tried  and  discussed  or  decided  upon  the  decision  of  which 
the  other  one  depends.*  Among  the  various  illustrations  of 
this  principle  we  will  mention  that  given  in  the  cap.  5, 
de  Renunciat.  Here  Pope  Clement  III.  (an.  1189)  lays 
down  the  rule,  that  where  an  ecclesiastic  asks  to  be  rein- 
stated in  his  benefice,  and  where  the  opposing  party  objects 
to  the  reinstatement  on  the  ground  that  the  plaintiff  had  vol- 
untarily resigned  the  benefice,  the  ecclesiastical  judge  should 
first  take  cognizance  of  the  question  as  to  whether  the 
resignation  had  really  taken  place,  and  that  voluntarily,  not 
through  fear  or  force.  For  it  is  evident  that  if  the  objection 
were  sustained — i.e.,  if  it  were  shown  that  the  plaintiff  had 

'  Supra,  n.  1031.         *  lb.,  n.  1035  sq.         ^  lb.,  n.  1054  sq. 
*  Cap.  I,  3,  de  Ord.  cogn.  (ii.  10);  L.  16,  17,  18  ff.  de  Except. 


234  Of  the  Ordinary  Canonical  Trial 

voluntarily  resigned — he  could  no  longer  ask  to  be  rein 
stated.'  For  the  same  reason,  all  exceptions,  whether  dila- 
tory or  peremptory,  should  be  tried  before  the  main  cause — 
with  this  difference,  however,  that  dilatory  exceptions  must 
not  only  be  tried,  but  also  decided,  before  the  main  cause ; 
while  peremptory,  according  to  many  canonists,  must  indeed 
be  tried,  but  need  not  be  decided,  before  the  principal  cause." 

1096.  2.  When  a  criminal  and  a  civil  cause  come  together, 
and  each  is  to  be  tried  separately  as  a  main  cause,  not 
merely  as  an  incidental  cause  or  counter-charge,  the  rule  is 
that  the  criminal  cause,  being  the  more  important,  is  to  be 
tried  before  the  civil.'  We  say,  and  each  is  to  be  tried  sepa- 
rately as  a  main  cause ;  for  when  a  criminal  cause  comes  up 
incidentally  in  a  civil  cause, — v.g,,  by  way  of  exception, — and 
vice  versd,  when  a  civil  cause  arises  incidentally  in  a  criminal 
cause,  then  the  judge  should  try  both  causes  simultaneously, 
and  decide  them  by  one  and  the  same  sentence.* 

1097.  3.  In  the  question  of  spoliation  {causa  spolii), 
namely,  when  the  defendant,  or  person  against  whom  the 
plaintiff  has  brought  an  action,  in  turn  complains  or  objects 
that  he  has  been  spoliated  {spoliatus)  by  the  plaintiff,  that  is, 
unjustly  stripped  or  deprive^  of  some  property  or  right, — it 
is  asked  whether  this  objection  should  be  tried  and  decided 
first,  that  is,  before  the  action  brought  previously  by  the 
plaintiff  ?  Before  answering,  we  shall  give  a  brief  explana- 
tion of  what  is  here  understood  by  spoliation.  By  spolia- 
tion {spolium,  spoliatid)  we  here  mean  the  most  grievous 
crime  by  which  a  person  is  despoiled  {spoliatus)  or  stripped 
of  something  belonging  to  him.^  Canonists  agree  that  this 
is  a  most  grievous  crime,  and  exceedingly  odious  in  the  eyes 
of  the  law  of  the  Church.  Schmalzgrueber  calls  it  gravis- 
simum  et  frequentissimum  f acinus. 


'  Reiff.,  1.  2,  t.  10,  n.  8.     «  Schmalzg.,  1.  2,  t.  10,  n.  7.     ^  L.  4,  C.  de  Ord.  Judic. 
*  L.  3,  C.  de  Ord.  jud.  *  Devoti,  1.  3,  t.  11,  §  6. 


i7i  Criminal  Causes.  235 

1098.  Two  things  are  required  to  constitute  spoliation — 
namely,  first,  that  a  person  has  had  possession  or  quasi-pos- 
session of  a  thing ;  secondly,  that  he  has  been  unjustly  de- 
prived of  it.'  Spoliation,  as  here  understood,  is  committed 
not  merely  when  a  person  is  dispossessed  violently  or  by 
force,  but  also  when  he  is  deprived  of  a  thing  by  deceit, 
fraud,  or  without  just  cause,  or  arbitrarily.^  Thus  an  eccle- 
siastical judge — v.g.,  a  bishop — is  guilty  of  spoliation  if  he 
deprives  an  ecclesiastic  of  his  office,  parish,  or  benefice  with- 
out a  manifest  and  sufficient  cause,  established  by  due  trial 
or  judicial  proceedings.^ 

1099.  Again,  spoliation  is  committed,  not  only  in  corporal 
or  temporal  goods,  movable  and  immovable,  but  also  in  spiri- 
tual things — that  is,  in  rights.  Hence  spoliation,  as  here 
understood,  is  taken  in  its  evident  signification,  so  that  who- 
ever is  unjustly  stripped  of  a  thing  or  right  possessed  by 
him  is  considered  as  despoiled  or  .y/(?/z^/z^.f.  Thus  a  husband 
who  is  rashly  deserted  by  his  wife,*  as  also  a  wife  who  is 
unjustly  put  away  by  her  husband,^  is  said  to  be  despoiled — 
namely,  of  the  respective  marriage  rights.  In  like  manner, 
as  we  have  already  seen,  an  ecclesiastic  who  is  unjustly  re- 
moved from  his  office,  parish,  or  benefice,  or  even  unjustly 
obliged  to  resign  it,  is  regarded  as  despoiled.*  Thus,  also,  a 
rector  in  the  United  States  would  be  despoiled,  at  least  in 
a  broad  sense,  in  the  eyes  of  the  law  of  the  Church  if  he  were 
dismissed  without  trial,  as  prescribed  by  the  Instruction  of 
the  Propaganda,  dated  July  20,  1878,  or  even  transferred 
against  his  will,  without  grave  and  sufficient  cause.' 

1 100.  Having  explained  what  is  meant  in  canon  law  by 

'  Cap.  10,  de  Off.  jud.  del.  (i.  2g);  cap.  i6,  de  Rest.  spol.  (ii.  13). 

*  Can.  3,  C.  3,  Q.  i;  Miinchen,  1.  c,  vol.  i.,  p.  354. 

'Cap.  7,  de  Rest.  spol.  (ii.  13).  *  Cap.  8,  de  Rest.  spol.  (ii,  13). 

*  Cap.  ID  (ii.  13).      8  Cap.  2,  3,  7,  de  Rest,  spol.;  cf.  Devoti,  1.  c,  §  7,  nota  2. 
'  Cf.  Instr.  S.  C.  de  Prop.,  20  Jul.,  1878,  §  Quod  si;  S.  C.  de  Prop.  Fide,  Ad 

Dubia,  §  i.,  Episcopi  vero  curent. 


236  Of  the  Ordinary  Canonical  Trial 

spoliation,  we  now  return  to  the  question  put  above  under 
No.  1097.  Where  a  plaintiff,  or  the  prosecution,  institutes 
an  action  or  judicial  proceedings  against  a  defendant, — v.g., 
where  a  bishop  prefers  criminal  charges  against  an  eccle- 
siastic for  the  purpose  of  punishing  him, — and  the  latter,  i.e., 
defendant,  interposes  the  plea  or  exception  of  spoliation, 
that  is,  complains  that  the  plaintiff,  v.g.,  the  bishop,  has 
despoiled  him,  or  unjustly  removed  him  from  his  place, 
should  this  plea  or  exception  of  spoliation  be  tried  and  de- 
cided first — i.e.,  before  the  action  brought  by  the  plaintiff? 
Before  answering,  we  observe  that  it  is  plain  that  we  speak 
here  of  the  exception  of  spoliation  as  coming  up  incidentally 
in  a  cause  on  trial,  and  not  as  a  separate  and  independent 
cause  or  action. 

iioi.  We  now  answer.  We  must  distinguish.  The  de- 
fendant in  the  case  interposes  the  plea  of  spoliation  either  in 
the  form  of  an  exception,  for  the  purpose  of  nonsuiting  the 
plaintiff, — i.e.,  of  throwing  his  case  out  of  court, — or  in  the 
form  of  a  counter-action  or  counter-complaint,  having  for  its 
direct  object  the  restitution  of  the  thing  taken  by  the  plain- 
tiff, or,  speaking,  v.g.,  of  the  removal  from  a  parish,  the  rein- 
statement of  the  person  despoiled.'  In  the  first  case,  the 
defendant  making  the  exception  of  spoliation  must  be  heard 
first,  and  having  proved  his  exception,  is  not  obliged  to  an- 
swer  the  plaintiff  or  prosecution  until  he  has  been  reinstated 
by  or  received  restitution  from  the  latter.*  This  holds  true 
even  where  the  plaintiff's  complaint  was  that  he  was  de- 
spoiled by  the  defendant.  For  the  position  of  a  defendant  in 
a  cause  is  always  more  favorable  than  that  of  the  plaintiff  or 
prosecution." 

1 102.  We  said,  first,  and  having  proved  the  exception  ;  for, 
so  far  as  concerns  the  exception,  the  defendant  making  it 


*  Cap.  2,  de  Ord.  cogn.  (ii.  10).       *  Cap.  2,  4,  de  Ord.  cogn.  (ii.  lo). 
*L.  125  ff.  de  Reg.  jur.  (50.  17);  cf.  Schmalzg.,  1.  2,  t.  10,  n.  15. 


in  Criminal  Causes. 


■6/ 


becomes  the  plaintiff,  and  therefore  assumes  the  burden  of 
proof.  The  exception  of  spoliation  must  be  proved,  accord- 
ing to  the  common  law  of  the  Church,  within  fifteen  days 
after  it  has  been  made.*  We  said,  secondly,  the  defendant  is 
not  obliged  to  answer  tmtil  he  has  been  reinstated.  This  is  the 
only  direct  effect  of  the  exception  of  spoliation.  For  an 
exception  has  for  its  direct  object  simply  the  quashing  or 
delaying  of  the  complaint,  and  nothing  else.^  Hence  restitu- 
tion or  reinstatement  does  not  follow  directly,  but  only  in- 
directly ;  in  other  words,  the  plaintiff  must  first  reinstate  the 
defendant,  who  excepts  and  proves  spoliation,  before  he  can 
continue  or  pursue  his  action,  and  thus  reinstatement  becomes 
the  conditio  sine  qua  non  of  his  right  to  prosecute  or  sue  the 
defendant. 

1 103.  In  the  second  case — namely,  where  a  defendant 
interposes  the  plea  of  spoliation  against  the  plaintiff  in  the 
form  of  a  counter-charge,  and  for  the  direct  purpose  of  being 
reinstated,  and  where  the  plaintiff's  action  is  also  for  spolia- 
tion— two  main  causes  or  mutiiae  petitiones  arise,  and  both 
causes  must  be  tried  simultaneously,  and  decided  by  one  and. 
the  same  sentence.  Note  we  said,  and  where  the  plaintiff's 
action  is  also  for  spoliation — i.e.,  where  a  plaintiff  charges  a 
defendant  with  spoliation,  and  the  latter  in  turn  makes  a 
counter-charge  that  he  was  also  spoliated  by  the  plaintiff. 
Both  actions  in  the  case — that  is,  the  action  of  the  plaintiff 
and  the  counter-action  of  the  defendant — must  be  for  spolia- 
tion.' For  if  the  action  of  the  plaintiff  is  alone  for  spoliation, 
and  that  of  the  defendant  for  some  gravamen  other  than 
spoliation,  or  if,  vice  versa,  the  counter-action  of  the  defendant 
is  for  spoliation  and  the  action  of  the  plaintiff  for  some 
injury  other  than  spoliation,  then  the  complaint  of  spoliation 
must  be  adjudicated  first. 

'  Cap.  I,  de  Rest,  spol.,  in  6°  (ii.  5).       '  Cap.  2,  cit. ;  Reifif.,  1.  2,  t.  10,  n.  19, 
*  Ex  cap.  2.  de  Ord.  cogn.  (ii.  10). 


2 3^  Of  the  Ordinary  Ca^tonical  Trial 

1 104.  Besides  the  above  two  ways,  there  is  a  third  way 
of  complaining  of  spoliation — namely,  where  a  person  who 
has  been  spoliated  prefers  the  charge  of  spoliation  by  way 
of  a  separate  and  independent  action  or  cause,  and  not 
merely  incidentally  by  way  of  exception  or  counter-action. 
What  is  the  mode  of  procedure  in  this  case  ?  The  general 
rule  is,  that  the  person  spoliated  must  be  reinsta,ted  r  receive 
restitution  before  all  else,  provided  it  is  really  shown  or 
lawfully  proved  by  him  that  the  spoliation  has  taken  place.' 
We  say,  before  all  else ;  hence  the  person  spoliated  is  not 
obliged  to  answer,  nor  can  the  judge  hear  any  objection  or 
counter-complaint  (except,  as  we  have  just  seen,  that  of 
spoliation)  interposed  by  the  defendant  or  spoliator  until  the 
complainant  has  been  reinstated.  This  holds,  as  a  rule,  even 
when  the  objection  interposed  by  the  defendant  charged 
with  spoliation  is  that  the  complainant  had  no  valid  title  or 
claim  to  the  thing,  or,  speaking  of  benefices,  that  he  was  not 
canonically  appointed,''  or  that  he  is  guilty  of  crime.'  Hence, 
generally  speaking,  none  of  these  objections  or  complaints 
can  be  heard  or  tried,  until  the  person  spoliated  has  been 
fully  reinstated,  or  received  restitution.* 

1 105.  An  apposite  illustration  of  this  teaching  is  given  in 
the  decretal  Conquerente  7,  de  Rest.  spol.  (ii.  13).  A  certain 
ecclesiastic  named  Renaldus  complained  to  Pope  Alexan- 
der III.  that  the  Archbishop  of  Canterbury  had  deprived 
or  dismissed  him  from  his  parish  without  due  trial  or  judi- 
cial proceedings-^«rw  ordine  non  servato.  The  archbishop, 
it  seems,  sought  to  justify  himself  on  the  ground  that  the 
ecclesiastic  in  question  had  been  guilty  of  crime.  The  Pope, 
however,  ordered  that  if  the  ecclesiastic's  complaint  were 
true,   the  archbishop   should  at  once  reinstate  him  in  his 

'  Can.  I,  2,  3,  C.  3,  Q.  i;  cap.  4,  de  Ord.  cogn. ;  cap.  5,  6,  7,  de  Rest.  spol. 
(ii.  13);  L.  I,  §  31  ff.  (xliii.  16).  «  Cap.  5,  de  Rest.  spol.  (ii.  13). 

2  Cap.  6,  de  Rest.  spol.      *  Cap.  5,  6  (ii   13);  Schmalzg.,  1.  2,  t.  13,  n.  27,  28. 


in  Criminal  Causes,  239 

parish,  and  allow  him  to  govern  it  in  peace  ;  that  only  after 
the  reinstatement  had  taken  place  could  the  archbishop,  if 
he  had  anything-  against  the  cleric,  prefer  his  charges  before 
the  Pope's  delegate  in  the  proper  judicial  manner.' 

1 106.  This  decision  shows  two  things:  i.  That  the  rule 
above  given — to  wit :  A  person  spoliated  must  before  all  else 
be  fully  restored  to  his  rights — applies  not  only  to  corporal 
or  temporal  possessions,  but  also  to  spiritual  things,  such 
as  parishes,  benefices,  ecclesiastical  pensions  or  annuities, 
the  right  of  electing  ecclesiastical  superiors,  bishops,  etc. 
2.  That  this  rule  holds  not  only  when  a  person  or  an  ecclesi- 
astic has  been  despoiled  by  a  private  person,  but  also  when 
he  has  been  spoliated  by  his  bishop  proceeding  without 
observing  the  proper  judicial  forms — v.g.,  when  he  is  de- 
prived of  his  parish  without  sufficient  cause  duly  established 
by  a  proper  trial.* 

1 107.  We  said  2Lho\e,^  the  general  rule  is;  for  there  are 
some  exceptions.  Thus,  speaking  of  spiritual  causes,  this 
rule — namely,  that  a  person  spoliated  must  before  all  else  be 
reinstated — does  not  apply,  i,  where  it  is  notoriotcs  that  the 
person  or  ecclesiastic  spoliated  of  his  benefice  had  no  valid 
title  to  it — v.g.,  because  he  is  a  heretic,  and  therefore  inca- 
pacitated for  any  benefice."  2.  Nor  even  where  there  is  a 
strong  presumption  that  he  has  obtained  his  ecclesiastical 
benefice  without  any  title  at  all,  or  with  a  vicious  one.  For 
by  reinstatem.ent  in  these  cases  a  person  would  be  put  in 
possession  of  a  benefice  without  a  canonical  appointment, 
against  the  Regula  I.  de  Reg.  jur.,  in  6° :  ''  Beneficium  eccle- 
siasticum  non  potest  licite  sine  institutione  canonicaobtineri." 
In  both  these  cases  the  person  spoliated  would  have  to  prove 
his  title  before  he  could  be  reinstated.  3.  Nor  does  the  rule 
stated  apply  in  cases — whether  they  regard  matters  strictly 

'  Cf.  Reiff.,  1.  2,  t.  13,  n.  56.  »  Reiff.,  1.  2,  t.  13,  n.  55. 

3  Supra,  n.  1104.  *  Schmalzg.,  1.  c,  n.  67. 


240  Of  the  Ordinary  Canonical  Trial 

spiritual,  or  any  other  matter  whatever  falhng  under  the 
competence  of  the  ecclesiastical  judge — where  the  person 
spoliated  waives  his  right — that  is,  consents  to  the  non- 
enforcement  of  the  rule.  For  the  rule  was  made  in  favor  of 
the  person  spoliated,  and  therefore  can  be  renounced  by  him 
if  he  chooses.'  And  this  is  true,  even  when  the  person 
spoliated  consents,  not  expressly,  but  only  tacitly — v.g.,  by 
not  protesting,  when  the  judge  allows  the  spoliator  to  go 
with  his  case,  before  he  reinstates  the  person  spoliated." 


§  6.  Examination  of  the  accused,  also  in  the  United  States. 

1 108.  After  the  preliminary  questions — that  is,  the  various 
exceptions — have  been  decided,  and  the  contestation  has 
taken  place,  and  the  usual  delays  have  been  granted,  the  chief 
part  of  the  trial,  the  taking  of  testimony,  begins.  Some- 
times, however,  as  we  have  seen,  the  plaintiff  or  prosecution 
(with  us,  the  bishop's  official  appointed  to  act  as  the  prose- 
cution ')  is  released,  either  in  whole  or  in  part,  of  the  neces- 
sity of  producing  proofs,  by  the  confession  of  the  accused — 
that  is,  by  his  admitting,  in  whole  or  in  part,  the  charges  and 
specifications  {positiones,  articuli,  capitula)  upon  which  he  is 
examined  or  interrogated  by  the  judge,  either  ex  officio  or  at 
the  instance  of  the  prosecution.  Where  the  trial  is  by  way 
of  inquisition,  the  charges  and  specifications,  together  with 
the  proofs  obtained  in  the  preliminary  investigation,  should 
be  shown  the  accused,  also  with  us,  as  soon  as  he  comes  into 
court  upon  due  citation,  unless  they  have  been  made  known 
to  him  beforehand.  He  is  then  asked  by  the  judge  whether 
he  admits  or  denies  them.  This  interrogation  of  the  judge, 
and  the  negative  answer  of  the  defendant,  constitute,  as  we 

'  Ex  cap.  12,  de  For.  comp.  (ii.  2);  ib.  Glossa,  v.  Pacto  privatorum;  Reiff., 
1.  c,  n.  73.  9  Cap.  I,  de  Rest.  spol.  (ii.  13). 

3  Instr.  S.  C.  de  P.  F.,  20  Jul.,  1878,  §  2,  Re  ad. 


in  Criminal  Causes.  241 

have  seen/  in  formal  canonical  trials  by  way  of  inquisition, 
the  contestation  of  the  cause." 

1 1 09.  This  examination  of  the  accused,  as  made  prior  to 
the  taking  of  the  testimony,  and  for  the  purpose  of  relieving 
the  prosecution  of  the  necessity  of  proving  their  case,  need 
not  take  place  in  summary  criminal  trials,  nor  in  proceed- 
ings before  our  Commissions  of  Investigation.  We  say, 
need  not ;  for  it  may  take  place,  at  this  stage  of  the  trial,  even 
in  proceedings  before  our  Commissions  of  Investigation, 
provided,  as  we  shall  see,  there  are  strong  proofs  of  guilt, 
warranting  such  examination.  Apart  from  this,  however, 
the  law  with  us  is,  that  the  accused,  after  having  made  or 
read  his  defence,  and  during  the  time  he  produces  his 
proofs,  is  subject  to  cross-examination  by  the  members  of 
the  Commission,  through  its  president.' 

mo.  We  therefore  ask:  Is  the  accused  (we  speak  of 
course  of  criminal  causes),  when  examined  by  the  judge 
(with  us,  either  by  the  bishop  or,  as  the  case  may  be,  by  the 
Commission  of  Investigation),  whether  in  the  beginning  of 
the  trial  or  during  its  progress,  bound  to  confess  his  guilt? 
We  must  distinguish  between  three  cases — namely,  {a)  when 
it  is  apparent  that  the  judge  examines  lawfully ;  {b)  unlaw- 
fully ;  {c)  when  it  is  doubtful  whether  or  not  he  examines  law- 
fully. Where  the  judge  examines  unlawfully,  it  is  certain  that 
the  accused  is  not  bound  to  answer  or  confess  his  guilt,  if  he 
be  guilty.  For  the  judge  in  the  case  exceeds  the  limits  of  his 
authority,  and  consequently  acts  simply  as  a  private  person. 
Now  when  does  the  judge  interrogate  unlawfully  or  non 
scrvato  juris  or  dine  ?  Chiefly  in  these  cases:  i.  Where  no 
public  report,  or  at  least  no  imperfect  proofs,  of  the  guilt  of 
the  accused  exist,  or  where  such  common  fame  or  imperfect 
proofs  are  not  juridically  established."    Hence  the  judge  can- 


'  Supra,  n.  1068.  *  Cf.  Bouix,  de  Jud.,  vol.  il  ,  pp.  192,  20i. 

^  Instr.  cit.,  §  7.  *  Stremler,  1.  c,  p.  166. 


242  Of  the  Ordinary  Canonical  Trial 

not  interrogate  the  accused  in  regard  to  occult  crimes,' — 
i.e.,  those  crimes  which  are  not  public,  either  by  common 
fame,  or  quasi-public,  that  is,  provable  in  court.'  For  occult 
crimes  should  not  be  made  public*  2.  Where  the  judge 
does  not  make  known  to  the  accused  the  proofs,  suspicions, 
witnesses,  depositions,  etc.,  that  exist  against  him.  For  in 
this  case  the  accused  cannot  know  whether  the  judge  inter- 
rogates juridically — i.e.,  lawfully — or  not,  and  therefore  is  not 
bound  to  answer.  For  he  is  obliged  to  answer  only  when 
it  is  certain  that  the  judge  interrogates  lawfully.  Moreover, 
the  judge,  by  interrogating  the  accused  unlawfully,  commits 
a  mortal  sin,  being  the  cause  of  the  latter's  defamation." 

1 1 1 1.  Where  it  is  doubtful  whether  the  judge  interrogates 
lawfully  or  not,  the  accused  is  not  bound  to  confess  his 
guilt  or  to  answer ;  for  where  there  is  a  doubt,  the  axiom 
holds :  "  Melior  est  conditio  possidentis."  * 

1 1 12.  Where,  however,  it  is  apparent  or  certain  that  the 
judge  interrogates  lawfully  or  servato  juris  or  dine, — v.g.,  where 
the  public  report,  or  at  least  the  half  proof  of  guilt,  is  estab- 
lished,— the  general  opinion  of  canonists  is  that  the  accused  is 
bound  to  answer  and  confess  his  guilt,  at  least  if  the  penalty 
to  be  inflicted  is  not  very  serious.  But  what  if  the  penalty  is 
of  a  grave  character — v.g..,  loss  of  entire  property,  or,  in  the 
case  of  an  ecclesiastic,  dismissal  from  his  parish,  which  is  the 
means  of  his  support,  and  is  therefore  equivalent  to  loss  of 
entire  property  ?  There  are  two  opinions :  one  affirms,  the 
other  denies,  that  the  accused  is  bound  to  answer  or  confess 
his  guilt.  The  negative  opinion,  as  explained  by  Stremler," 
is,  that  unless  the  guilt  is  fully  proven,  or  at  least  susceptible 
of  being  completely  proved,  th2  accused  is  not  bound  to  an- 
swer or  confess  his  crime,  even  where  the  judge  interrogates 
lawfully.     This  opinion  is  probable,  and  may  certainly  be 

'  Reiff.,  1.  2,  t.  18,  n.  156.  «  Cap.  Qualiter  et  quando,  de  Accus. 

'  Can.  Erubescant,  Dist.  32.  *  Reiff.,  1.  c,  n.  159. 

^  Schmalzg.,  1.  2,  t.  18,  n.  3.  •  L.  c,  p.  168. 


in  Criminal  Causes.  243 

followed  by  confessors,  especially  where  the  accused  cannot 
be  persuaded  to  confess  his  guilt.  The  chief  reasons  upon 
which  this  opinion  is  based  are  :  {a)  that  no  human  law,  such 
as  the  command  of  the  judge,  binds  under  grave  inconve- 
nience, {b)  Again,  nobody  is  obliged  to  testify  against  a 
relative,  if  a  serious  evil  should  be  the  consequence.  Now, 
no  person  is  a  nearer  relative  to  one's  self  than  such  person  is 
to  himself,  {c)  Finally,  it  would  seem  repugnant  to  the  very 
law  of  nature  to  oblige  an  accused  party  to  complete,  by  his 
confession,  the  proofs  of  his  own  guilt,  and  thus  become 
instrumental  in  inflicting  upon  himself  a  grave  penalty.* 

1 1 13.  On  the  other  hand,  those  who  hold  the  affirmative, 
which  is  the  more  probable  opinion,^  contend  that  the  judge 
has  the  right,  nay,  the  duty,  of  interrogating  the  accused, 
and  of  finding  out  by  all  lawful  means  who  are  the  guilty 
parties,  especially  as  the  good  of  the  Church  requires  crimes 
to  be  punished  ;  that  therefore  the  accused  has  the  correlative 
duty  to  answer  and  confess  his  guilt  (if  he  is  guilty),  when 
juridically  or  lawfully  interrogated  by  the  judge,  even 
though  a  grave  punishment  should  be  the  result.  However, 
the  supporters  of  the  negative  opinion  answer,  that  from  the 
right  and  duty  of  the  judge  (we  speak  of  the  ecclesiastical 
judge)  to  interrogate,  the  duty  of  the  accused  to  confess  his 
guilt  does  not  follow,  just  as  it  does  not  follow  that  because 
the  judge  has  a  right  to  imprison  a  defendant  the  latter  has 
no  right  to  evade  imprisonment  if  he  can. 

1 1 14.  However,  even  those  who  hold  the  affirmative 
admit  that  the  accused  is  not  bound  to  answer  ad  mentcni 
judicis  or  confess,  if  the  offence  was  but  a  material  one — that 
is,  if  the  accused  was  excused  from  mortal  sin,  owing,  v.g., 
to  want  of  deliberation.  They  concede,  moreover,  that  the 
accused  need  not  confess  an  external  circumstance  or  occur- 
rence, if  this  avowal  would  cause  him  to  be  suspected  of  a 

'  Fermosin.  Rubr.  de  confessis,  Q.  5,  nn.  18,  ig.  Col.    Allobr.,  1741. 
*  Schmalzg.,  1.  2,  t.  18,  n.  3. 


244  Of  the  Ordinary  Canonical  Trial 

crime  of  which  he  is  otherwise  innocent.  Thus  the  accused 
who  is  asked  whether  at  such  an  hour  he  was  in  such  a 
place,  may  deny  it  (even  though  he  was  there)  if  he  foresees 
that  from  his  affirmative  answer  the  judge  will  infer  that  he 
has  committed  the  deed.' 


§  7.  Manner  of  submitting  the  Proofs  in  Ecclesiastical  Courts, 
also  in  the  United  States — TJie  Trial  Proper — Mode  of  con- 
ducting the  Prosecution  and  the  Defence. 

1 1 15.  When  the  accused  denies  the  charges  and  specifi- 
cations, either  wholly  or  at  least  substantially,  it  becomes 
necessary  for  the  prosecution  to  produce  before  the  judge 
whatever  proofs  he  may  have  in  support  of  his  charges. 
These  proofs,  as  we  have  seen,  consist  of  instruments,  docu- 
ments, etc.,  and  chiefly  of  the  depositions  of  witnesses.''  It 
is  scarcely  necessary  to  remark  here,  that  the  burden  of  proof 
rests  upon  the  prosecution.  Consequently,  where  the  latter 
(also  in  the  United  States)  fails  to  submit  good  and  sufficient 
proofs,  the  defendant  may  simply  content  himself  with  deny- 
ing the  charge.  He  need  not  prove  his  innocence,  as  that  is 
presumed,  until  the  contrary  is  clearly  established. 

1 1 16.  We  have  already  dwelt  at  sufficient  length  upon 
the  nature  and  force  of  the  various  judicial  proofs.'  Here 
we  shall  confine  ourselves  to  the  manner  in  which  both  the 
prosecution  and  defence  produce  their  proofs  for  or  against 
the  cause.  As  the  testimony  of  witnesses  constitutes  the 
chief  and  most  important  kind  of  proofs,  we  shall  here  speak 
mainly  of  the  manner  in  which  witnesses  are  produced  and 
examined  in  court.  Much  has  been  already  said  on  this 
head  above,  under  Nos.  836  sq.,  to  which  we  refer  the  reader. 
It  only  remains  for  us  to  add  a  few  remarks. 

1 1 17.  Mode  of  producing  and  examining  witnesses,  whether 

'  Stremler,  1.  c,  p.  168.  «  Supra,  n.  815  sq.  '  Supra,  n.  820  sq. 


in  Criminal  Causes.  245 

for  or  against  the  cause,  where  the  common  law  of  the  Church 
obtains  on  this  head. — Witnesses,  as  we  have  seen/  must  be 
examined  one  by  one,  and  apart  from  each  other.  They  can, 
at  least,  if  the  judge  deems  it  proper  or  where  it  is  the  cus- 
tom, be  confronted  with  the  party  against  whom  they  testify  ; 
in  other  words,  the  opposite  party,  whether  it  be  the  prose- 
cution or  defendant,  can  be  allowed,  at  least,  at  the  discre- 
tion of  the  judge,  to  be  present  at  the  examination.  We  say, 
at  least;  for,  as  we  have  shown  above,''  there  are  two  opin- 
ions: one  denies, — and  this  is  the  common  opinion, — the  other 
affirms  that  the  common  law  of  the  Church  permits  the  con- 
frontation of  the  witnesses  with  the  party  against  whom  they 
testify.  Owing  to  this  fact,  the  custom  was  introduced  into 
some  ecclesiastical  courts  of  confronting  witnesses  with  the 
opponent — at  least  where  the  judge  thought  it  proper.  In 
the  larger  number,  however,  of  these  courts  the  more  com- 
mon opinion  of  canonists  was  followed,  and  no  confrontation 
was  allowed,  except  in  extraordinary  cases.  As  both  modes 
may  be  and  are  followed,"  we  shall  separately  discuss  the 
manner  of  examining  the  witnesses  in  both  cases. 

1 1 18.  Mode  of  examining  the  zvitnesses,  where  the  witnesses 
are  not  confronted  with  the  party  against  whom,  they  are  testify- 
ing.— Observation. — Where  the  defendant  or  accused  is  ex- 
cluded, i.e.,  not  confronted  with  the  witnesses,  the  prosecutor 
must  also  be  excluded — i.e.,  he  must  not  be  allowed  to  be  pres- 
ent at  the  examination  of  the  witnesses.  Hence  also,  in  pro- 
ceedings before  our  Commissions  of  Investigation,  the  bishop's 
official  who  acts  as  promoter  or  prosecutor  cannot  be  allowed 
to  be  present  at  the  examination  of  witnesses  unless  the  same 
right  is  also  conceded  to  the  defendant.  Having  made  this 
observation,  we  now  proceed  to  discuss  the  question.  Where 
the  litigants — i.e.,  the  prosecutor  and  defendant — are  excluded 
from  the  examination  of  the  witnesses,  the  prosecutor,  before 

'  Supra,  n.  839.     *  Supra,  n.  838,  839.     ^  Cf.  Craiss.,  n,  5714,  5944,  5945. 


246  Of  the  Ordinary  Canonical  Trial 

the  beginning  of  the  examination,  submits  to  the  judge  a 
written  list  of  the  questions  or  interrogatories  on  which  he 
wishes  the  judge  to  examine  the  witnesses  for  the  prosecu- 
tion, and  the  defendant  in  like  manner  hands  into  the  judge 
a  similar  list  of  questions  on  which  he  requests  the  judge  to 
cross-examine  the  witnesses. 

1 1 19.  In  order  that  the  accused  may  be  able  to  know 
what  questions  to  hand  to  the  judge  for  cross-examination, 
he  must  of  course  know  the  questions  submitted  by  the 
prosecutor.  Hence  the  judge,  after  having  received  the 
prosecutor's  interrogatories  for  the  direct  examination,  com- 
municates them  to  the  accused,  so  as  to  enable  him  to  frame 
his  cross-questions  and  hand  them  to  the  judge.  This 
applies  also  to  proceedings  before  Commissions  of  Investiga- 
tion in  the  United  States,  when  the  Commission  does  not 
think  it  prudent  or  when  the  witnesses  are  unwilling  to 
allow  the  confrontation.* 

1 1 20.  When  both  the  prosecutor  and  the  defendant  have 
handed  in  their  interrogatories  or  questions  the  judge  pro- 
ceeds to  examine  the  witnesses,  first  on  the  questions  and 
cross-questions  submitted  by  the  prosecutor  and  defendant, 
and  then  on  the  facts  of  the  case  in  general.  On  the  conclu- 
sion of  the  examination  he  proceeds,  on  a  day  fixed  for  that 
purpose,  to  the  publication  of  the  entire  testimony  and  pro- 
ceedings in  the  case  :  that  is,  he  causes  the  testimony  of  the 
witnesses  examined  by  him,  as  just  described,  together  with 
all  the  other  evidence  and  acts  in  the  case,  to  be  read  before 
the  parties — prosecutor  and  defendant,  and  gives  the  accused 
a  copy  of  the  entire  evidence  and  all  the  acts,  so  as  to  enable 
him  to  prepare  for  his  defence. 

1 121.  This  is  c?i\\edi  publicaiio  attestatiomnn — i.e.,  the  com- 
munication of  the  prosecution's  evidence  to  the  accused."  It 
is  also  termed  publicatio  processus  offensivi,  for  the  reason  that 

•  Instr.  S.  C.  de  P.  F.,  20  Jul.,  1878,  §  12,  Consentientibus.    *  Craiss.,  n.  5939. 


in  Criminal  Causes.  247 

hitherto  or  up  to  the  present  stage  of  the  proceedings  the 
prosecution  has  mainly  acted,  and  the  defence  has  as  yet  not 
begun,  properly  speaking,  and  the  publication  of  the  evidence 
is  intended  chiefly  for  the  benefit  of  the  accused.  Hence 
the  judge,  if  requested,  must  give  the  accused  a  copy  of  the 
entire  proceedings  or  acts, — i.e.,  of  all  the  testimony  and 
minutes  of  the  case, — so  as  to  enable  him  to  prepare  for  his 
defence.  The  witnesses  for  the  defence  are  examined  in  the 
same  way,  as  we  shall  see. 

1 122.  Mode  of  procedure,  according  to  the  common  law  of  the 
CJmrch,  when  the  litigants — the  prosecution  and  defence — are 
allowed  to  confront  the  witnesses. — The  above  is  the  mode  of 
procedure  when  the  litigants  are  not  allowed  to  confront 
the  witnesses.  Where,  however,  the  contending  parties  are 
permitted  to  be  present  at  the  examination  and  to  hear  what 
the  witnesses  say,  the  prosecutor  and  the  defendant  may 
themselves  or  personally  examine  the  witnesses,  though  as 
a  rule  only  through  the  judge.  We  say,  though  .  .  .  only 
tJirough  the  judge ;  for,  by  the  common  law  of  the  Church, 
witnesses  must  be  examined  and  cross-examined  by  the  judge 
himself,  and  not  directly  by  the  prosecution  or  defence,  or 
their  respective  advocates.'  We  say,  moreover,  as  a  rule  ; 
since,  where  there  is  a  just  cause,  the  judge  may  allow  or 
depute  others — v.g.,  the  parties  themselves  or  their  advocates 
— to  examine  the  witnesses.  This  holds  also  of  the  examina- 
tion of  witnesses  in  the  United  States  before  Commissions  of 
Investigation.^  From  what  has  been  said,  it  follows  as  a  mat- 
ter of  course,  that  in  this  mode  of  examination  the  parties  or 
litigants  need  not  hand  the  judge  a  hst  of  their  questions  and 
cross-questions,  as  they  do  when  they  are  excluded  from  the 
examination,  or  not  allowed  personally  to  examine  the  wit- 
nesses.    It  follows,  moreover,  that  a  publication  of  the  testi- 


'  Ex  Nov.  60,  cap.  2;   Schmalzg. ,  1.  2,  t.  20,  n.  93. 
2  Cf.  Instr.  S.  C.  de  P.  F.  cit.,  §§  11,  12. 


248  Of  the  Ordinary  Canonical  Trial 

mony,  etc.,  is  scarcely  necessary  in  the  case,  as  the  parties, 
having  been  present  at  the  examination,  are  fully  aware  of 
what  transpired.  However,  the  defendant  should  be  given 
a  copy  of  the  depositions  and  proceedings  if  he  requests  it, 
as  this  will  the  better  enable  him  to  prepare  for  his  defence. 

1 123.  We  must  here  call  attention  to  certain  things  which 
are  peculiar  to  the  examination  of  witnesses  when  the  trial 
is  by  way  of  absolute  inquiry  {ex  mcro  officio) — i.e.,  where 
there  is  no  promoter  or  bishop's  official,  or  other  person 
to  prefer  and  prove  the  charges,  and  where,  consequently, 
the  bishop  or  judge  must  himself  collect  and  prefer  and 
establish  the  charges.  In  this  case,  the  judge,  before  begin- 
ning the  trial, — i.e.,  before  proceeding  to  the  citation  of  the 
accused, — should  first  be  sure  that  the  requisite  defamation 
or  common  fame  exists,  as  without  such  fame  he  cannot  even 
validly  cite  the  accused ;  he  should  also  gather  all  the 
information,  facts,  and  proofs  possible  in  the  case,  so  that, 
before  he  cites  the  accused,  he  may  have  in  his  possession 
full,  or  at  least  imperfect,  proofs  of  the  guilt.  The  fuller 
this  preliminary  information  or  trial  is,  the  better  will  it  be.' 

1 124.  When  the  bishop  or  judge  has  completed  this  in- 
quiry, which  is  called  the  preliminary  inquiry  for  the  judge's 
information  (^processus  inforniativus,  processus  pro  infonnatione 
curiae),  and  finds  that  the  evidence  in  hand  warrants  it,  the 
citation  is  issued.  When  the  accused  appears  in  obedience 
to  the  citation,  he  should  at  once  be  informed  of  the  charges 
and  specifications,  and  also  of  the  proofs  existing  against 
him.  If  he  acknowledges  his  guilt,  sentence  may  be  pro- 
nounced forthwith.  If  he  denies  it,  and  moreover  refuses  to 
declare  that  he  accepts  or  regards  the  witnesses,  as  examined 
in  the  preliminary  investigation,  as  lawfully  examined,*  the 
bishop  or  judge  must  formally  and  in  court  examine  all  the 
witnesses  over  again,  and  that  in  the  manner  and  with  the 

»  Bouix,  de  Jud.,  vol.  i.,  p.  154.  »  Craiss.,  n.  5942. 


in  Criminal  Causes.  249 

formalities  described  above.'  Upon  the  conclusion  of  this 
examination,  the  publication  takes  place,  as  above  stated. 
Where  the  accused  denies  the  guilt,  but  is  willing  to  accept 
the  examination  of  the  witnesses  in  the  preliminary  investiga- 
tion as  legitimate,  or  where  he  has  been  allowed  to  be  present 
at  the  preliminary  investigation  and  examination  of  the  wit- 
nesses, and  cross-examine  them,  no  repetition  of  the  wit- 
nesses' testimony  need  take  place ;  but  a  copy  is  simply 
given  the  accused  of  the  entire  testimony  and  proceedings 
or  acts,  to  enable  him  to  prepare  for  his  defence. 

1 1 25.  The  preliminary  investigation  or  inquiry,  here 
spoken  of,  takes  place,  only  when  the  judge  proceeds  by 
way  of  inquiry  and  denunciation,  but  not  when  he  proceeds 
by  way  oi  accusation.  Because  in  the  latter  case  the 
accuser  binds  himself  to  produce  the  necessary  proofs. 
Hence  the  judge  is  reheved  from  the  necessity  of  finding 
sufficient  proofs  of  guilt,  so  as  to  warrant  him  to  proceed  to 
the  citation.  Consequently,  in  the  trial  by  way  of  accusa- 
tion, the  witnesses  are  not  examined  before  the  citation,  to 
see  whether  there  is  common  report,  and  sufficient  proof  of 
guilt  to  warrant  the  citation.  This  examination  takes  place 
only  in  the  usual  course  of  the  trial — i.e.,  after  the  citation  of 
the  accused. 

1 126.  In  connection  with  this  matter,  we  observe  that 
what  has  been  said  of  the  publication  of  the  testimony  of  the 
witnesses  applies  equally  to  all  the  other  kinds  of  evidence 
or  proofs  submitted  by  the  prosecution.  In  other  words, 
whatever  evidence  or  proof  is  advanced  by  the  prosecution 
must  be  communicated  to  the  defendant  for  his  defence. 
Thus  if  instruments,  documents,  or  letters  are  submitted  as 
proofs,  a  copy  of  them  must  be  furnished  to  the  defendant." 

1 127.  As  this  communication  of  all  the  evidence  of  the 
prosecution  is  a  necessary  condition  and  part  of  a  legitimate 

*  Supra,  n.  836  sq. ;  n.  1117  sq. ;  n.  1122  sq. 

^  Cap.  II,  de  Prob.  (ii.  19);  Miinchen,  1.  c,,  vol.  i.,  p.  273,  n.  7. 


250  Of  the  Ordinaiy  Canonical  Trial 

defence,  and  therefore  forms  substantially  part  of  all  trials, 
formal  or  summary,  it  must  also  substantially  take  place  in 
trials  in  the  United  States  as  conducted  before  our  Commis- 
sions of  Investigation.  This  is  apparent  from  the  following 
words  of  the  Instruction  of  the  S.  C.  de  P.  F.,  of  July  20, 
1878:'  "Per  litteras,  etiam  rectorem  .  .  advocet "  (epis- 
copus)  "  exponens  .  .  causam  ad  depositionem  moventem, 
per  extensum."  The  same  is  also  inferable  from  these  words 
of  the  above  Instruction  :  "  Facta  ipsi "  (reo)  "  plena  facul- 
tate  ea  omnia  in  medium  afferendi  .  .  quae  ad  propriam 
defensionem  conferre  possunt."  "^  For  this  full  liberty  of 
defending  himself  contains  the  implication  that  the  accused 
shall  be  fully  informed  as  to  the  evidence  that  stands  against 
him.  Otherwise,  how  defend  himself  1  Here  we  note,  that 
not  only  the  depositions  but  also  the  names  of  the  witnesses 
must  be  communicated  to  the  defendant,  also  with  us, 
except  of  course  where  the  confrontation  has  taken  place. 

1 1 28.  Manner  of  conducting  the  defence  (^processus  dcfen- 
siviis) — i.e.,  examining  witnesses,  etc.,  for  the  defence — according 
to  the  principles  of  the  common  law  of  the  Chnrch. — After  the 
publication  of  the  evidence,  as  above  stated,  the  real  defence, 
or  \}ci&  processus  defensivus,  begins,  properly  speaking.'  Not 
only  positive  and  human,  but  also  natural  and  divine  law, 
gives  the  accused  the  right  to  defend  himself."  It  is,  more- 
over, a  principle  of  the  Roman  or  civil  law,  incorporated 
into  the  canon  law,  that  whatever  is  allowed  the  prosecution 
or  plaintiff  must  a  fortiori  be  conceded  to  the  defence  or 
the  accused.  "  Non  debet,"  says  the  Roman  law,  "  licere 
actori,  quod  reo  non  permittitur."'  And  again:  "Cui 
damns  actiones,  eidem  et  exceptionem"  (defence)  "  compet- 
ere  multo  magis  quis  dixerit."'  Not  only,  therefore,  are 
the  prosecution  and  defence  placed  on  a  footing  of  perfect 

>  §  4,  Per  litteras.  *  lb.,  §  7,  Deinde. 

*  MUnchen,  1.  c,  vol.  i.,  p.  279,  n.  14.       *  Bouix,  de  Jud.,  vol.  ii.,  p.  222. 

*L.  44  ff.  de  Reg.  jur.  (50.  17).  «  L.  156  ff.  de  Reg.  jur   (50.  17). 


in  Criminal  Cmises.  251 

equality,  but  the  defence  must  even  be  given  the  preference 
or  advantage.  Consequently,  as  the  prosecution  has  full 
liberty  to  prove  its  charges,  so  must  the  defendant,  a  fortiori, 
have  the  fullest  liberty  to  disprove  them  and  defend  himself. 
Thus  the  Instruction  of  the  S.  C.  de  P.  F.,  of  July  20,  1878, 
applying  these  principles  to  the  United  States,  says :  "  Facta 
ipsi  "  (rectori  missionario  seu  reo)  ''plena  facultate  ea  omnia 
in  medium  afferendi  .  .  quae  ad  propriam  defensionem  con- 
ferre  possunt.'" 

1 129.  How,  then,  is  the  defence  to  be  conducted?  The 
accused  has  the  right  (also  with  us,  as  is  expressly  stated  in 
the  citation  just  given  from  the  Instruction  of  1878)  to  pro- 
duce, and  the  judge  is  obliged  to  hear  and  examine,  all  argu- 
ments, documents,  witnesses,  and  proofs  whatsoever,  that 
the  accused  wishes  to  produce  in  his  defence.  For  this 
purpose,  the  accused,  either  in  person  or  through  his  advo- 
cate, first  draws  up  a  written  outline  of  the  defence, — i.e.,  a 
written  statement  setting  forth  the  various  heads  or  points 
of  the  defence  {articiili  defensorii), — and  promising  to  pro- 
duce the  requisite  witnesses,  documents,  etc.,  in  proof  of 
each  and  every  head  or  article  of  the  defence.  Next,  this 
writing  is  given  to  the  judge  on  the  day  set  down  for  the 
defence,  and  it  forms  the  basis  and  frame  of  the  entire 
defence  or  defensive  proceedings.'' 

1 1 30.  The  following  is  a  specimen  of  the  manner  in  which 
this  statement  is  drawn  up  by  the  defendant's  advocate : 
I.  That  the  crime  was  committed,  not  by  the  accused,  but  by 
a  certain  person  called  N.  2.  That  the  accused  was  during 
such  a  month,  or  on  such  a  day,  and  at  such  an  hour  at  C,  a 
village  five  miles  distant  from  the  place  where  the  crime  was 
committed,  and  remained  at  C,  v.g.,  from  7  a.m.  to  10  p.m. 
This  defence  is  commonly  called  an  alibi  in  our  secular  courts. 
3.  That  N.,  one  of  the  witnesses  for  the  prosecution  {pro  causa), 

'  Instr.  cit.,  §  7,  Deinde.  *  Bouix,  1.  c,  p.  223. 


252  Of  the  Ordinary  Canonical  Trial 

is  under  excommunication,  a  perjurer,  infamous,  an  enemy  of 
his  client,  etc.  4.  That  R.,  another  witness  for  the  prosecu- 
tion, belongs  to  a  faction  or  party  or  cHque  opposed  to  his 
cUent,  and  that  after  his  examination  he  said  he  had  stood 
well  by  his  friend.  5.  That  Y.,  the  accuser  or  plaintiff,  is  a 
drunkard,  liar,  etc.  At  the  conclusion  of  these  and  other 
heads  of  the  defence  the  advocate  adds  that  he  will  produce 
the  proper  witnesses,  documents,  and  other  proofs,  one  after 
another,  in  succession,  to  prove  each  of  the  above  articles  or 
heads  of  the  defence.* 

1 131.  After  this  written  outline  of  the  defence  has  been 
handed  to  the  judge,  the  latter  assigns  the  defence  a  day 
(either  the  same  day,  if  the  parties  are  ready,  or  another)  on 
which  they  must  begin  to  present  their  witnesses,  documents, 
and  other  proofs,  by  which  they  wish  to  establish  the  above 
heads  of  the  defence.  If  the  witnesses  for  the  defence  refuse 
to  come  spontaneously,  at  the  request  of  the  accused,  they 
should  be  summoned  to  appear  by  authority  of  the  judge. 
On  the  day  appointed,  the  accused  or  his  advocate  should 
produce  their  proofs  in  the  following  manner :  He  should 
take  up  the  heads  of  the  written  defensive  outline,  one  by 
one,  in  succession,  and  prove  each  one  separately.  When  he 
has  produced  all  the  evidence  in  his  possession — witnesses, 
letters,  etc., — to  prove  the  first  head  of  the  defence,  he  pro- 
ceeds to  the  next,  proving  it  fully,  and  then  to  the  third,  and 
so  on."  The  witnesses  for  the  defence  are  examined  in  the 
same  manner  as  those  for  the  prosecution.^  The  other 
proofs,  such  as  letters,  documents,  submitted  by  the  defence, 
are  similarly  examined. 

1 1 32.  As  the  defendant  was  allowed  to  cross-examine 
(usually  through  the  judge,  sometimes  in  person)  the  wit- 
nesses for  the  prosecution,  and  offer  objections  to  the  other 
evidence  submitted  against  him,  so  also  is  the  plaintiff   or 

*  Bouix,  1.  c,  p.  579.  *  Cf.  Bouix,  1.  c,  p.  580.  '  Supra,  n.  837. 


in  Criminal  Ca^cses.  253 

diocesan  prosecutor  {promotor  fiscalis  ;  with  us,  bishop's  offi- 
cial appointed  to  present  the  case  to  the  Commission)  now 
permitted  to  cross-examine  the  witnesses  for  the  defence, 
either  through  the  judge  (with  us  Commission,  or  as  the 
case  may  be,  bishop)  or  in  person,  and  reply  to  and  endeavor 
to  break  down  any  other  evidence  that  may  have  been  pro- 
duced by  the  defence.  To  enable  him  (prosecutor)  to  do  so, 
he  must  either  be  allowed  to  be  present  at  the  examination 
of  the  witnesses  for  the  defence  (where  this  privilege  was 
granted  to  the  defence),  or  informed  of  the  interrogatories 
upon  which  they  are  to  be  examined. 

1 133.  To  this  replication  by  the  prosecution  {replicatio), 
the  accused  or  his  advocate  may  again  answer  {diiplicatio), 
and  produce  further  proofs,  such  as  witnesses,  letters,  etc., 
in  support  of  his  answer  or  rejoinder.  In  like  manner,  the 
prosecution  has  the  right  to  reply  to  and  try  to  overthrow 
the  defendant's  rejoinder,  and  vice  versd ;  and  soon  until  both 
the  prosecution  and  the  defence  have  exhausted  all  their  re- 
spective proofs  or  arguments.'  In  fact,  in  criminal  causes  no 
limit  can  be  placed  to  the  replies  or  presentation  of  testimony, 
etc.,  on  the  part  of  the  defence.  Of  course  the  prosecution  has 
a  corresponding  right  always  to  submit  rebutting  testimony." 

1 1 34.  Summing  up  by  tlic  parties. — When  the  accused  has 
finished  his  defence,  and  declares  that  he  has  no  further 
defence  to  make,  a  da}^  (either  the  same  day  or  another)  is 
appointed  by  the  judge  on  which  the  parties  will  sum  up 
their  case,  and  the  judge  pronounce  sentence.  On  the  day 
fixed,  the  parties — the  plaintiff  or  diocesan  promoter  on  the 
one  hand,  and  the  accused  on  the  other,  together  with  their 
i-espective  advocates — having  appeared  in  court,  the  defend- 
ant's advocate,  or  the  defendant  in  person,  if  he  wishes  to 
conduct  his  own  defence,  is  allowed  to  speak  first  and  sum 
up  the  case.     Speaking  in  general,  the  defendant  or  his  ad- 

'  L.  2  ff.  de  Except,  (xliv.  i);  Miinchen,  L  c,  vol.  i.,  p.  281. 
■■^  Bouix,  1.  c,  vol.  ii.,  p.  223. 


254  Of  the  OrdiJiary  Canonical  Trial 

vocate  should,  in  his  speech,  endeavor  to  show  that  from  the 
evidence  submitted  during  the  trial  it  is  clear,  i,  that  the 
alleged  crime  was  committed  by  nobody ;  2,  that  if  it  was 
perhaps  committed,  the  fact  was  not  sufficiently  proved ; 
3,  that  even  admitting  gratuitously  that  it  had  been  com- 
mitted, it  was  shown  on  the  trial  that  the  defendant  was  not 
its  author;  4,  that  even  though  it  had  not  been  sufficiently 
proved  that  the  defendant  was  innocent,  yet  neither  had  it 
been  proved  that  he  was  guilty  ;  for  the  trial  had  been  con- 
ducted without  the  proper  formalities,  or  the  witnesses  had 
made  contradictory  statements,  or,  in  general,  the  proofs 
adduced  were  of  little  or  no  account,  etc.  5.  Finally,  even 
though  it  had  been  conclusively  shown  that  the  defendant 
had  committed  the  alleged  crime,  yet  the  offence  was  only  a 
material,  not  a  formal  one,  as  it  had  not  been  proved  that 
there  was  malice  and  premeditation.  Hence  the  defendant 
must  be  declared  not  guilty.' 

1 135.  Next,  the  plaintiff  or  diocesan  promoter  (with  us, 
bishop's  official)  is  permitted  to  speak  or  sum  up,  either  per- 
sonally or  through  his  advocate.  Then  the  defendant  or  his 
advocate  may  reply,  and  vice  vcrsd.  These  speeches  may 
continue  as  long  as  the  judge  thinks  proper,  or  as  custom 
allows.  The  last  speech  is  always  made  by  the  defence. 
When  the  parties  have  finished  summing  up  the  case,  the 
judge  may  proceed  to  pronounce  sentence. 

1 1 36.  Mode  of  procedure  in  the  United  States,  before  Com- 
missions of  Investigatioji,  in  the  examination  of  witnesses  and 
admission  of  proofs,  both  for  the  prosecution  and  the  defence. 
— The  course  of  the  defence,  as  laid  down  in  the  Instruction 
of  the  S.  C.  de  P.  F.,  of  July  20,  1878,  is  substantially 
the  same  as  that  of  formal  canonical  trials  above  described. 
After  the  proscution — i.e.,  the  vicar-general  or  other  priest 
appointed  by  the  bishop  to  act  as  diocesan  prosecutor,"  or 

*  Bouix,  1.  c,  p.  587.  *  Instr.  cit  ,  §  2,  Re  ad  Consilium. 


in  Criminal  Causes.  255 

his  advocate — has  read  before  the  Commission  of  Investi- 
gation the  written  statement  of  the  charges  and  specifica- 
tions, submitted  the  requisite  evidence  to  sustain  the  charges, 
and  answered  the  questions  put  by  the  Commission,  the 
defendant  or  his  advocate  begins  the  defence  properly  speak- 
ing. We  say,  properly  speaking ;  for  improperly  or  inci- 
dentally the  defence  runs  through  the  whole  trial,  and 
is  begun,  v.g.,  already  as  soon  as  the  accused  cross-examines 
the  witnesses  for  the  prosecution.  This,  however,  is  only, 
as  is  plain,  an  incidental  defence.  The  defence  proper, 
with  us,  begins  when  the  accused  or  his  advocate  reads 
before  the  Commission  a  written  statement  or  answer  to  the 
charges  preferred  by  the  bishop's  official." 

1 137.  This  answer  is  drawn  up  and  signed  by  the  defend- 
ant's advocate,  or  by  the  defendant  himself  if  he  wishes  to 
conduct  his  own  case  in  person.  It  forms  the  basis  of  the 
entire  defence,  and  should  therefore  be  a  complete  outline  of 
the  defence,  as  above  described.^  Next,  either  on  the  same 
day,  or  on  a  subsequent  day  or  days  fixed  by  the  Commis- 
sion, the  defence  have  the  right  to  take  up,  one  after  another, 
the  heads  of  their  answer,  and  to  present  consecutively  any 
proofs,  such  as  witnesses,  letters,  etc.,  they  wish,  in  support 
of  each  and  every  point  or  head  of  the  defence,  as  given  in 
the  written  statement  read  before  the  Commission,  as  above 
described." 

1 1 38.  This  right  cannot  be  limited  by  the  Commission  of 
Investigation.  Hence  the  defendant  or  his  advocate  cannot 
be  compelled  to  present  his  witnesses  or  documents,  etc.,  to 
the  Commission  on  the  same  day  on  which  he  reads  his 
statement  or  general  answer.  Sufficient  and  proper  time 
must  be  given  him  to  produce  his  witnesses,  etc.,  one  after 
another,  and  without  undue  hurry  or  inconvenience.  This 
is  clearly  implied  in  these  words  of  the  oft-quoted  Instruc- 

'  Instr.  cit.,  §  7,  Deinde.         ^  Supra,  n.  1129-1131.  '  Supra,  n.  1131. 


25^  Of  the  Ordinary  Canonical  Trial 

tion  of  July  20,  1878  :  "  Facta  ipsi  "  (reo)  "  plena  facultate  ea 
omnia  in  medium  afferendi,  intra  tempus  tamen  a  Consilio 
determinandum,  quae   ad    propriam    defensionem    conferre 

possunt."  ' 

1 1 39.  The  manner  in  which  the  defendant's  witnesses  are 
examined  is  the  same  as  that  in  which  the  witnesses  for  the 
prosecution  are  questioned.'  Now  the  latter  are  examined 
by  the  Commission,  one  by  one,  apart  from  each  other,  and 
first  in  the  absence  of  the  accused."  Next,  if  the  Commis- 
sion judge  it  prudent,  and  the  witnesses  consent,  they  are 
re-examined  in  the  presence  of  the  accused,  who  can  cross- 
examine  them  through  the  president  of  the  Commission.'  Of 
course,  when  the  witnesses  are  unwilling  or  the  Commission 
deems  it  inexpedient  to  allow  them  to  be  confronted  with  the 
accused,  it  is  apparent  from  what  has  been  said  that  the  lat- 
ter must  be  permitted  to  hand  in  to  the  president  of  the 
Commission,  in  writing,  any  questions  upon  which  he  wishes 
and  requests  the  witnesses  of  the  prosecution  to  be  cross- 
examined  by  the  Commission. 

1 140.  The  witnesses  for  the  defence  are  examined,  as  we 
have  said,  in  the  same  or  a  similar  manner.  Hence  they  are 
examined  first  in  the  absence  of  the  prosecution — i.e.,  the 
bishop's  official  appointed  for  this  purpose,  or  his  advocate ; " 
and  only  when  the  Commission  thinks  it  proper,  and  the 
witnesses  for  the  defence  consent,  can  the  prosecution  be 
allowed  to  be  present  and  cross-examine  the  witnesses 
through  the  president  of  the  Commission.  Of  course,  where 
the  prosecution  are  not  allowed  to  be  present  at  the  examina- 
tion of  the  defendant's  witnesses,  they  haVe  the  right,  just  as 
the  defendant  had  in  reference  to  the  prosecution's  witnesses, 
to  hand  to  the  Commission  written  questions  or  interroga- 
tories to  be  put  to  the  witnesses  by  the  president  of  the 
Commission. 

'  Instr.  cit.,  §  7.  *  lb.,  §  13.  Eadem.  »  lb.,  §  11,  Singuli. 

^  lb.,  §  12,  Consendentibus.  »  Instr.  cit.,  §  2,  Re  ad. 


in  Criminal  Causes.  257 

1 141.  The  accused  may  again  reply  to  what  the  prosecu- 
tion may  have  advanced  in  their  cross-examination  or  other- 
wise. The  bishop's  official  or  promoter,  or  his  advocate,  may 
in  turn  be  permitted  to  answer  again,  and  vice  versd.  The 
last  production  or  presentation  of  evidence  is  always  made 
by  the  defendant.  From  what  has  been  said,  it  is  evident 
that  the  defendant  in  the  United  States,  as  elsewhere,  in 
order  to  be  able  to  defend  himself  properly,  must  receive, 
not  only  from  the  bishop,  a  full  statement  of  the  charges, 
etc.,  before  the  trial,  but  also  from  the  Commission  a  copy 
of  all  the  acts  and  proceedings  which  have  taken  place  from 
the  beginning  of  the  trial  down  to  the  time  when  he  begins 
his  defence  proper — i.e.,  all  the  proofs  advanced  by  the 
prosecution — namely,  depositions  of  witnesses,  letters,  etc., 
as  also  the  minutes  of  the  Commission.' 

1 142.  When  the  defendant  or  his  advocate  has  exhausted 
all  the  means  of  defence  at  his  command,  and  moreover  ex- 
pressly declares  that  he  has  no  further  defence  to  make,  the 
Commission  proceeds  to  the  final  stage  of  the  trial  or  inves- 
tigation, and  appoints  a  day  (either  the  same  day  or  some 
other)  on  which  it  will  hear  the  final  arguments  or  summing 
up  of  the  parties,  and  enter  into  consultation  on  the  results 
of  the  trial,  prior  to  making  up  its  report  to  the  bishop.*  On 
the  day  appointed,  the  defendant  or  his  advocate  speaks  first, 
and  sums  up  the  case  for  the  defence.  Next  follows  the  pro- 
moter appointed  by  the  bishop,  or  the  promoter's  advocate. 
The  latter  in  turn  is  followed  by  the  defendant  or  his  advo- 
cate, and  so  on.  The  defendant  or  his  advocate  always 
makes  the  last  speech,  as  already  stated.  This  final  summing 
up  by  the  parties  forms  an  integral  part  of  a  legitimate  de- 
fence, and  therefore  it  would  seem  that  it  cannot  be  forbidden 
by  the  Commission." 

1 143.  Next  the  Commission  proceeds  to  deliberate  and 

'  Cf.  Instr.  S.  C.  de  P.  F.  cit.,  g§  2,  7,  12.  ^  Instr.  cit.,  §§  9,  14. 

'  Cf.  Instr.  cit..  §  7,  Deinde. 


25^  Of  tJie  Ordinary  Canonical  Trial 

make  up  its  decision  on  the  case,  in  the  following  manner : 
After  the  summing  up  by  the  parties,  the  Commission,  either 
immediately,  or  on  a  subsequent  day  set  apart  by  it,  goes 
into  consultation.  Here  the  members  of  the  Commission 
first  carefully  go  over  the  evidence  of  the  prosecution  and 
defence,  discuss  among  each  other  its  force,  authenticity,  etc. 
Having  carefully  weighed  all  the  testimony  before  them, 
they  proceed  to  vote,  and  if  a  majority  finds  the  accused  or 
defendant  guilty  or  not  guilty,  or,  speaking  of  civil  causes, 
the  facts  proved  or  not  proved,  each  member  will  write  out 
his  opinion  or  verdict  in  accordance  with  his  vote,  together 
with  the  reasons  therefor.'  In  order  to  enable  the  members 
to  write  out  their  opinions  at  leisure,  the  Commission  may 
adjourn  to  another  day.  On  the  day  fixed,  the  Commission 
reassembles,  and  the  members  will  then  compare  their  writ- 
ten opinions  with  each  other,  for  the  purpose  of  ascertaining 
whether  they  correspond  with  the  vote,  and  also  to  enable 
them  to  make  opportune  corrections,  at  the  suggestion  of 
their  fellow  Commissioners.'  The  best  way  would  seem  to 
be  that  each  member  should  read  his  opinion  to  the  other 
members. 

1 144.  Afterwards  the  acts  of  the  proceedings  {acta  in  Con- 
silid) — i.e.,  all  the  documents,  letters,  depositions  of  witnesses, 
and  also  the  minutes  kept — are  filed  or  arranged,  or  put  in 
order  by  the  bishop's  official  or  promoter  (unless  this  has 
been  already  done  during  the  course  of  the  trial),  signed 
by  the  president  in  the  name  of  the  Commission  (unless  this 
has  been  already  done  during  the  course  of  the  trial),  and 
handed  to  the  bishop,  together  with  the  written  opinions  or 
verdict  of  the  Commission,  either  by  the  president  of  this 
body  or  its  secretary." 

1 145.  By  the  acta  in  Consilio*  are  meant  not  only  the 
minutes  of  the  proceedings  kept  by  the  secretary  of  the 

•  Instr.  cit.,  §  9,  Quibus.  »  lb.  »  Instr.  cit.,  §  9,  Quibus.  *  lb. 


in  Criminal  Causes.  259 

Commission,  but  also  all  steps  taken  by  or  before  the  Com- 
mission, such  as  the  issuing  of  citations,  interlocutory  deci- 
sions, resolutions,  etc. ;  also  all  documents  whatever — v.g., 
letters,  depositions  of  witness,  etc.,  etc. — submitted  to  the 
Commission,  whether  by  the  prosecution  or  defence.'  All 
these  are  first  signed  and  thus  authenticated  by  the  president 
of  the  Commission,  in  the  name  of  the  latter  body,  before 
they  are  delivered  to  the  bishop.*  Where  the  Commission 
holds  more  than  one  meeting,  it  may  be  advisable  to  have 
the  minutes  of  the  previous  meeting  {acta  judicii)  read,  cor- 
rected, approved  or  adopted  by  the  Commission,  and  signed 
by  the  president  at  each  subsequent  meeting.  In  like  man- 
ner, the  various  documents  relating  to  the  cause  itself,  such 
as  letters,  proofs,  etc.,  may  be  signed  by  the  president  of  the 
Commission  at  each  meeting,  as  they  are  presented. 

1 146.  The  above  phrase  of  the  Instruction  of  the  Propa- 
ganda, of  July  20,  1878,  all  the  dociuncnts  .  .  .  are  filed  .  .  . 
by  the  bishop's  official  or  promoter  {acta  in  Consilio  ab  cpiscopi 
officiali  redigantur'^),  has  given  rise  among  some  of  our  ecclesi- 
astics to  two  different  opinions.  One  affirms  that  the  bishop's 
official — i.e.,  the  vicar-general  or  other  priest  appointed  by 
the  bishop  to  act  as  promoter  or  prosecutor— is  thereby 
charged  to  act  as  secretary  or  notary  for  the  Commission, 
and  therefore  to  keep  the  minutes,  etc.  The  other  opinion, 
which  seems  to  us  the  true  one  (we  say  it  with  all  deference 
and  submission  to  any  future  decision  of  the  Holy  See), 
denies  this,  chiefly  on  the  following  grounds:  i.  The  bishop's 
official  in  the  case  is  entrusted  with  the  duty  of  drawing  up 
a  full  and  specific  statement  of  the  charges  against  the  ac- 
cused." To  this  end  he  must  naturally  gather  all  the  avail- 
able information,  proofs,  and  witnesses  for  the  prosecution, 
in  order  to  be  able  to  substantiate  the  charges  to  be  pre- 
ferred by  him  against  the  accused  before  the  Commission. 

1  Cf.  Reiff.,  1.  2,  t.  I,  n.  185.  «  Instr.  S.  C.  de  P.  F.  cit.,  §  9. 

*  Instr.  cit.,  §  9,  Quibus.  ■*  lb.,  §  2,  Re  ad  Consilium. 


26o  Of  the  Ordinary  Canonical  Trial 

He  is  charged  with  the  office  of  reading  this  statement  to, 
and  consequently  of  preparing  the  charges  before,  the  Cora- 
mission,  and  of  estabhshing  or  proving  them  before  this 
body.*  Upon  him  devolves,  therefore,  in  every  sense  of  the 
word,  the  duty  and  office  of  a  diocesan  promoter  or  prose- 
cutor. 

1 147.  Now,  is  not  the  position  of  so  interested  a  party  as 
that  of  the  prosecution  or  plaintiff  wholly  incompatible  with 
that  of  a  notary  or  secretar}-,  whose  duty  it  is  to  write  out 
impartially  the  minutes  relating  both  to  the  prosecution  and 
defence,  and  who  should,  therefore,  be  entirely  disinterested 
in  the  matter?  Could  it  be  supposed  that  the  Propaganda, 
considering  the  bias  and  natural  inclination  of  human  nature, 
would  allow  the  prosecutor,  who  by  his  very  office  becomes 
one ,  of  the  contending  parties,  to  write  out  the  minutes 
relating  not  only  to  the  prosecution,  but  even  to  the  oppo- 
nent? Would  it  not  be  unreasonable  to  deny  that  grave 
suspicion  must  attach  to  the  acts  or  minutes  drawn  up  by  a 
party  so  directly  concerned  in  the  cause  ?  Do  not  all  laws, 
secular  and  ecclesiastical,  prescribe  that  the  notary  shall 
have  no  interest,  direct  or  indirect,  in  the  matter  or  case  for 
which  he  acts  as  notary  or  secretary. 

1 148.  2.  Moreover,  shall  it  be  said  that  the  prosecutor 
or  bishop's  official,  by  being  allowed  to  act  as  secretary  of 
the  Commission,  shall  have  the  right  to  be  present  at  all  the 
meetings  of  the  latter  body,  and  thus,  v.g.,  confront  the  wit- 
nesses for  the  accused,  whereas  the  latter  may  be  excluded 
from  the  meetings  where  the  prosecutor's  testimony  is  pre- 
sented ?  Or  that  he  shall  have  the  custody  of,  and  therefore 
free  access  to,  all  the  documents  of  the  defence,  even  before 
the  time  for  their  publication  arrives?  Would  this  not  be 
giving  every  possible  advantage  to  the  prosecution  and  every 
possible  disadvantage  to  the  defence  ?  whereas  the  law  of  the 

*  Cf.  Instr.  cit.,  §  6,  Relatio. 


in  Criminal  Catcscs.  261 

Church  is  that  the  defence  shall  not  only  be  placed  on  a 
footing  of  equality  with  the  prosecution,  but  always  given 
the  advantage. 

1 149.  3.  However,  it  might  be  objected  that  Pope  Bene- 
dict XIV.,  speaking  of  synodal  judges,  with  whom  our  Com- 
missions of  Investigation  are  expressly  compared  by  the 
S.  C.  de  P.  F.  in  its  answer  Ad  DHbia,"^  explanatory  of  its 
Instruction  of  July  20,  1878,  says  that  they  cannot  appoint 
a  notary  or  secretary  of  their  own,  but  must  take  one  of 
those  who  are  appointed  by  the  bishop.  Those  who  hold 
the  negative,  answer  this  objection  by  saying  that  it  does  not 
refer  to  this  country  at  all;  that  it  applies  merely  to  places 
where,  as  in  Europe,  the  bishop  appoints  several  perma- 
nent notaries,  not  to  act  as  his  secretaries  or  chancellors, 
but  as  notaries  indiscriminately  for  all  persons  in  ecclesias- 
tical causes,  Just  as  secular  notaries  are  appointed  by  the 
secular  power  in  this  country.  That  the  view  of  Pope  Bene- 
dict XIV.  does  not  apply  to  our  country,  seems  apparent 
from  the  fact  that  with  us,  as  in  France,  there  are  no  other 
notaries  but  the  secretaries  or  chancellors  of  bishops,  or 
others  appointed  by  the  bishop  for  this  or  that  matter.  Now, 
as  the  annotator  of  Reiffenstuel  says,  these  notaries  or  offi- 
cials, being  removable  ad  mitum,  cannot  in  certain  causes  or 
matters  win  the  full  confidence  of  the  subjects,  lay  or  cleri- 
cal, of  the  bishop.  We  add  with  the  same  writer,  that  there 
seems  no  reason  why  two  or  three  ecclesiastical  notaries 
should  not  be  permanently  appointed  for  each  diocese." 

1 1 50.  4.  Again,  the  phrase  acta  in  Consilio  ab  episcopi  offi- 
ciali  redigantur,  means  simply  to  arrange  or  put  on  file  the 
acts  and  documents,  but  not  to  act  as  secretary,  or  take 
down  the  minutes.  Bouix  ^  uses  this  same  phrase  in  the 
sense  just  explained.     5.  Finally,  the  bishop's  official  in  our 

'  S.  C.  de  P.  F.,  Ad  Dubia,  §  ii.,  Electio  Consiliariorum. 

'  Annotat.  VIIL,  in  torn.  iii.  ap.  Reifif.,  vol.  iii.,  pp.  609,  610:  Parisiis,  1S66. 

^  De  Jud.,  vol.  ii.,  p.  594. 


262  Of  the  Ordinary  Canonical  Trial 

case  is  supposed  to  be  the  vicar-general.  For  the  words  of 
the  Instruction  plainly  indicate  that  only  where  there  is  suf- 
ficient reason  for  it  shall  another  priest,  and  not  the  vicar- 
general,  act  as  the  diocesan  promoter  or  prosecutor.  Now, 
it  could  hardly  be  supposed  that  the  Propaganda  wished  to 
impose  the  onerous  duty  of  a  secretary  upon  such  a  digni- 
tary as  the  vicar-general.  Hence  it  would  seem  that  the 
Commission  of  Investigation  has  the  right  to  appoint  its  own 
secretary  or  notary.  This,  in  fact,  is  the  custom  with  us,  at 
least  in  many  dioceses. 

1 1 5 1 .  Nature  of  the  opinion  or  verdict  rendered  by  the  Covi- 
mission  of  Investigation. — In  this  matter,  both  the  Instruction 
of  the  S.  C.  de  P.  F.,  dated  July  20,  1878,  and  its  supplemen- 
tary declarations  Ad  Dubia  are  explicit.  This  verdict  or 
opinion  is  not  a  final  judicial  sentence,  but  resembles  the  ver- 
dicts given  by  the  juries  of  our  secular  courts.  It  is  an  ad- 
vice given  to  the  bishop  by  the  Commission,  in  a  solemn 
manner,  and  with  a  full  knowledge  of  the  whole  case.  It 
cannot,  therefore,  but  have  great  weight  with  the  bishop,  and, 
in  case  of  appeal,  also  with  the  superior  to  whom  the  appeal 
is  made.  For  it  must  always  be  filed  among  the  acts  of  the 
cause  and  trial,  and  therefore  forms  part  of  the  official  docu- 
ments, which  on  appeal  must  be  forwarded  to  the  judge  of 
appeal.  Yet  the  bishop  is  not  bound  to  follow  this  verdict. 
He  is  free,  absolutely  speaking,  to  pronounce  the  final  sen- 
tence— v.g.,  of  condemnation,  even  where  the  Commission 
has  not  found  the  accused  guilty.'  We  say,  absolutely  speak- 
ing;  for  practically  it  will  rarely  happen  that  the  bishop 
will  pronounce  sentence  against  the  advice  or  opinion  of  the 
Commission. 

'  Cf.    Instr.  cit.,  §  Commissionis  ita;  S.  C.  de  Prop.   F.,  Ad  Dubia,  §  iii.. 
Votum  a  Consilio  datum. 


in  Criminal  Causes.  263 


Art.  III. 

Proceedings  in  formal  Canonical  Trials,  and  also  in  Trials 
before  Commissions  of  Investigation  in  the  United  States, 
in  Criminal  Causes,  from  the  Final  Sentence  to  the  end. 

1 1 52.  When  the  defence  rests,  or  declares  that  it  has  no 
further  defence  to  make,  it  but  remains  for  the  judge  to  pro- 
nounce sentence,  and  thus  put  an  end  to  the  controversy  or 
trial.  We  shall  therefore  now  briefly  speak  of  the  final  sen- 
tence, its  execution,  and  appeals  from  it. 

§  I.  Nature  and  Division  of  Judicial  Sentences — Interlocutory 

Sentences. 

1 153.  A  judicial  sentence  {sentential,  speaking  in  general, 
is  the  decision  of  the  judge  in  the  matter  or  case  on  trial,  or 
in  the  controversy  brought  before  his  tribunal.'  There  are 
two  kinds  of  judicial  sentences  :  interlocutory  and  definitive. 
Interlocutory  sentences  (j^«^r«/zrt£'  iiiterlocutoriae)  are  decisions 
given  by  the  judge  during  the  course  of  the  trial, — i.e.,  at  any 
time  or  stage  of  the  trial  between  the  beginning  and  the 
end, — not  on  the  merits  of  the  cause  itself,  or  of  the  main  ques- 
tion under  litigation,  but  on  some  incidental  matter  or  ques- 
tion— v.g.,  on  the  admissibility  of  witnesses  or  other  evidence  ; 
on  the  propriety  of  granting  the  parties  longer  delays  or 
time  to  prepare,  etc.  Hence  any  decision,  command,  or 
resolution  of  the  judge  pertaining  to  the  case  or  trial,  which 
is  made  between  the  beginning  and  the  end  of  the  trial, — 
that  is,  from  the  citation  to  the  final  sentence  exclusive, — is, 
properly  speaking,  an  interlocutory  sentence.^ 

1 1 54.  We  %2ij,from  the  citation,  etc.;  for  a  decision  given 
by  the  judge  on  an  incidental  matter,  before  the  citation  or 
after  the  final  sentence,  is  not,  properly  speaking,  an  inter- 

*  Schmalzg.,  1.  2,  t.  27,  n.  17.  "  Reiff.,  1.  2,  t.  27,  n.  14. 


264  Of  the  Ordinary  Canonical  Trial 

locutory  sentence,  but  only  a  quasi-interlocutory  sentence. 
And  it  is  to  be  borne  in  mind  that  the  prohibition  to  appeal 
from  interlocutory  sentences  applies  only  to  interlocutory 
sentences  proper,  but  not  to  quasi-interlocutory  sentences.' 

1 155.  Interlocutory  sentences  are  subdivided  into  simple 
and  mixed.  A  simple  interlocutory  sentence  is  one  which 
remains  strictly  within  the  limits  of  an  interlocutory  sen- 
tence, and  therefore  does  not  affect  the  cause  itself,  or  the 
main  question  at  issue,  in  such  a  manner  as  to  virtually  end 
it.  Decisions  of  this  kind  are  those  by  which  the  judge 
grants  further  delays,  or  commands  the  parties  to  be  present 
in  court  on  a  certain  day,  to  produce  their  proofs,''  etc.  A 
mixed  interlocutory  sentence  {sentottia  interloaitoria  mixta, 
vcl  Jiabens  vim  definitivac)  is  one  that  goes  farther,  and  does 
not  merely  touch  on  or  decide  an  incidental  point,  such  as 
the  admissibility  of  witnesses,  but  materially  affects  the  main 
cause  itself,  in  such  a  manner  as  to  virtually  decide  it.'  We 
say,  virtually ;  for  although  such  a  sentence  does  not  for- 
mally terminate  the  cause,  yet  it  does  so  indirectly,  or,  as 
we  have  said,  virtuall3^  Hence  such  a  sentence  is  called  an 
interlocutory  sentence  having  the  force  of  a  final. 

1 1 56.  Such,  v.g.,  are  the  following  decisions:  {a)  All  de- 
cisions which  preclude  the  hope  of  any  other  decision  in  the 
same  court  or  instance — v.g.,  where  the  judge  decides  that 
a  person  can  or  cannot  appeal ;  that  the  appeal  is  given  up  or 
abandoned  by  the  appellant*  {b)  Any  decision  by  which  a 
fine  is  imposed,  {c)  or  a  person  is  commanded  to  give  or  do 
something;  (^)  or  by  which  the  judge  decides  that  he  has 
no  competence  in  the  case,^  ic)  or  adjudicates  one  of  the  sub- 
stantial points  of  the  controversy  or  main  cause ; "  (/)  admits 
or  rejects  a  peremptory  exception;  {g)  or  decides  that  the 
plaintiff  or  prosecution  has  sufficiently  proved  his  case,'  etc. 

'  Reifif.,  1.  c,  n.  15.      «  lb.,  n.  16.      '  Ex  1.  9,  C.  de  Sent,  et  interl.  (vii.  45). 
*  Reiff.,  1.  c,  n.  18.  *  Ferraris,  v.  Appellatio,  art.  4,  n,  7. 

«  Ex  1.  39  ff.  de  Minor,  (iv.  4).  ■>  Schmalzg.,  1.  2,  t.  27,  n.  18. 


in  Criminal  Causes.  265 

1 1 57.  Interlocutory  sentences  differ  from  final  chiefly  as 
follows  :  I.  As  to  their  form.  For  a  final  sentence  should  be 
pronounced  with  certain  formalities  (as  we  shall  see  further 
on),  while  an  interlocutory  can  be  pronounced  summaril)% 
and  without  any  judicial  formalities.  2.  As  to  their  stability  ; 
for  the  judge  can,  as  a  rule,  revoke  or  amend  an  interlocu- 
tory sentence,  but  not  a  definitive.' 

1 158.  3.  As  to  the  right  of  appealijtg.  For  from  a  final  sen- 
tence it  is  always  allowed  to  appeal,  except  in  a  few  specified 
cases,  given  above.''  While  at  present  an  appeal  from  an 
interlocutory  sentence  is  permitted  only  {a)  when  the  inter- 
locutory sentence  has  the  force  of  a  final  sentence ;  {V)  or  if  it 
inflicts  a  grievance  which  cannot  be  remedied  by  a  final  sen- 
tence ; '  or  by  an  appeal  from  a  final  sentence."  We  say,  at 
present ;  for,  according  to  the  common  law  of  the  Church, 
as  it  stood  before  the  Council  of  Trent,  and  is  laid  down  in 
the  corpus  juris  canonici,^  it  was  allowed,  generally  speaking, 
to  appeal  from  all  interlocutory  sentences  whatever.  But 
the  Council  of  Trent  °  restricted  this  right  in  the  manner  just 
stated. 

1 1 59.  Now  when  is  an  interlocutory  sentence  considered 
as  having  the  force  of  a  final  sentence,  or  inflicting  an  injury 
or  grievance  which  cannot  be  redressed  by  a  final  sentence, 
or  by  an  appeal  from  a  final  sentence,  so  as  to  admit  of  an 
appeal,  even  at  the  present  day  ?  I.  An  interlocutory  sen- 
tence is  regarded  as  having  the  force  of  a  final  sentence,  and 
therefore  admits  of  an  appeal,  chiefly  in  these  cases  :  i.  When 
counts  or  articles  or  specifications  of  the  defendant,  or,  as  the 
case  may  be,  of  the  complainant  or  prosecution,  are  unjustly 
admitted    or    unjustly    rejected    by   the    judge    or    court. 

'  Schmalzg.,  1.  c,  n.  20.  *  Supra,  n.  445  sq. 

*  Cf.  cap.  59,  de  Appell.  (ii.  28);  ib.  Glossa,  incasum. 

*  Cf.  cap.  12,  de  Appell.  in  6°  (ii.  15);  ib.  Glossa,  in  casum. 
5  Cap.  12,  de  Appell.  (ii.  28). 

*  Sess.  13,  cap.  i.,  de  Ref. ;  sess.  24,  cap.  20,  de  Ref. 


266  Of  the  Ordinary  Canonical  Trial 

2.  Where  witnesses  are  rejected  ;  or  when  there  is  question 
of  admitting  or  rejecting  witnesses.  3.  Where  any  other 
kind  of  proof — v.g.,  instruments,  documents,  letters,  etc. — 
offered  in  evidence  is  rejected.  4.  Where  the  time  given  a 
person  to  prepare  or  produce  his  proofs  is  sq  short  as  to 
make  it  difficult  or  well-nigh  impossible  for  him  to  be  ready 
at  the  time  fixed.  5.  If  the  judge  imposes  the  burden  of 
proof  upon  the  wrong  person.  6.  When  peremptory  excep- 
tions are  decided  by  an  interlocutory  sentence.  7.  Hence, 
also,  when  the  judge  pronounces  himself  competent  or 
incompetent.  8.  Where  the  judge  refuses  to  furnish  the 
defendant  (or,  as  the  case  may  be,  the  complainant  or  prose- 
cution) with  a  copy  of  the  minutes,  acts  of  the  case  and  of 
the  proceedings,  and  of  the  proofs.' 

1 160.  It  is  evident  that  upon  the  interlocutory  decisions 
in  the  cases  just  enumerated  depends  in  a  measure  the  final 
sentence  or  decision  of  the  main  cause.  For  if  the  judge, 
v.g.,  refuses  to  admit  important  witnesses  or  documents,  or 
excludes  part  of  the  case,  he  thereby  virtually  decides  the 
whole  case  against  the  person  whose  witnesses,  etc.,  he 
rejects,  as  the  nature  of  the  final  sentence  depends  materially 
upon  the  evidence  submitted.''  Hence,  too,  interlocutory 
decisions  of  this  kind  are  properly  said  to  have  the  force  of 
a  final  sentence. 

1 161.  II.  An  interlocutory  sentence  is  considered  as  inflict- 
ing an  injury  that  cannot  be  remedied  by  a  final  sentence,  or 
by  an  appeal  from  a  final  sentence,  chiefly:  i.  Where  the 
judge  decrees  that  a  bodily  penalty,  such  as  imprisonment, 
shall  be  inflicted.  2.  Where  a  censure,  such  as  suspension, 
is  to  be  imposed  ;  and  in  this  case  the  appeal,  as  we  have 
seen,'  if  interposed  before  the  censure  is  fulminated,  has  a 
suspensive  effect.     It  is  plain  that  in  both  these  cases  the 

'  Ferraris,  v.  Appellatio,  art.  iv.,  n.  33-48. 

*  Cf.  ib.,  Novae  add.,  n.  4.  '  Supra,  n.  446. 


in  Criminal  Causes.  267 

ecclesiastical  judge  could  not,  in  any  subsequent  final  sen- 
tence, or  in  proceedings  of  appeal  (if  the  case  were  appealed 
to  him),  redress  or  undo  the  injury  inflicted  by  the  previous 
imprisonment  or  censure.'  3.  Where  dismissal  from  one's 
office  or  parish  is  decreed ;  and  in  this  case  the  appeal  has  a 
suspensive  effect.  4.  Where  a  person  is  excluded  from 
a  public  office — v.g.,  a  parish — because  of  alleged  infamy."* 

1 162.  From  this  it  will  be  seen  that  interlocutory  sen- 
tences which  have  the  force  of  a  final  sentence,  or  inflict  an 
irreparable  gravamen,  are  in  many  respects  placed  on  an 
equal  footing  with  final  sentences  proper."  We  observe 
here  that  the  restriction  of  the  Council  of  Trent,  prohibiting 
appeals  from  interlocutory  sentences  except  in  the  above 
cases,  extends  only  to  appeals  against  interlocutory  sentences 
as  pronounced  in  the  course  of  a  trial  or  of  judicial  proceedings, 
but  not  to  appeals  from  extrajudicial  acts  or  grievances.* 
For  from  the  latter — i.e.,  extrajudicial  grievances — it  is  alwa3's 
allowed  to  appeal,  whether  they  partake  of  the  nature  of 
final  acts  and  sentences,  or  only  of  interlocutory.  ^ 

1 163.  Finally,  we  shall  state  a  few  of  the  formalities 
peculiar  to  appeals  from  interlocutory  appeals:  i.  They 
must  express  the  cause  of  the  appeal — that  is,  they  must 
state  the  gravamen  against  which  the  appeal  is  made.' 
2.  The  complaint  must  be  reasonable,  not  frivolous,'  3.  The 
litigant  or  party  who  considers  himself  aggrieved  by  an 
interlocutory  ruling,  mandate,  or  resolution  of  the  judge 
cannot  appeal  immediately  against  such  ruling,  but  must 
first  make  the  objection — i.e.,  except  to  or  protest  against 
the  ruling — before  the  judge  himself  who  has  made  it ;  and 
only  when  the  judge  rejects  the  protest,  even  though  he 
does  so  only  tacitly, — v.g.,  if  he  goes  on  with  the  trial  with- 

'  Cf.  cap.  Super  eo  12,  de  Appell.  in  6°  (ii.  28);  Ferraris,  1.  c,  Novae  add.,  n.  16. 
'^  Ferraris,  1.  c,  art.  4,  n.  44  sq.  ^  Schmalzg.,  I.  c,  n.  21;  Reiff.,  1.  c,  n.  24. 

^  S.C.  C.  ap.  Ferraris,  I.  c,  n.  32.  ^  Supra,  n.  444.  *  Ferraris,  l^  c,  n.  10. 
'  Our  Elements,  vol.  i.,  p.  426. 


268  Of  the  Ordinary  Canonical  Trial 

out  heeding  the  exception  or  protest, — can  the  aggrieved 
party  appeal  to  the  higher  judge.' 

1 164.  Interlocutory  sentences  of  ecclesiastical  courts,  in  the 
United  States,  as  established  by  the  Instruction  of  the  S.  C.  de 
P.  F.,July  20,  1878. — According  to  this  Instruction,"  and  the 
subsequent  Declarations  of  the  Propaganda,"  the  trial — 
i.e.,  the  hearing  of  the  case  from  the  citation  to  the  final  sen- 
tence exclusive,  of  all  criminal  causes  (of  which  we  here 
speak) — is  committed  to  the  Committee  of  Investigation  to 
be  established  in  each  and  every  diocese  of  the  United 
States.  The  bishop,  however,  retains  the  exclusive  right  to 
pronounce  the  final  sentence.  In  other  words,  in  this  country 
no  dismissal  from  parish,  no  ecclesiastical  punishment  or 
censure,  and  no  grave  disciplinary  correction  can  be  inflicted 
by  the  bishop,  except  upon  due  trial,  as  prescribed  by  the 
Instruction  of  the  S.  C.  de  P.  F.,  dated  July  20,  1878.* 

1 165.  Moreover,  according  to  the  common  law  of  the 
Church,  as  we  have  frequently  remarked,  grave  civil  causes 
{causae  civiles  ardiiae) — that  is,  ecclesiastical  causes  where 
no  punishment  is  inflicted,  but  where  there  is  question  of 
deciding  other  matters  of  importance ; "  for  instance,  the 
jurisdiction  of  a  bishop,  parochial  rights  of  rectors,  etc. — are 
placed  on  a  footing  of  equality  with  criminal  causes.  Hence 
it  would  seem  that  no  ecclesiastical  civil  cause  of  importance 
should  be  decided  by  the  Ordinary,  save  upon  due  trial  of 
the  matter,  conducted  in  the  mode  laid  down  in  the  above 
Instruction  of  the  Propaganda. 

1 166.  With  us,  therefore,  all  interlocutory  decisions  in 
the  above  cases  are  given  by  the  Commission  of  Investiga- 
tion. In  other  words,  the  Commission,  being  charged  with 
the  exclusive  right  to  hear  the  causes  above  mentioned,  has 

*  Cap.  63,  de  Appell.  (ii.  28);  Schmalzg.,  1.  2,  t.  28,  n.  69;  Ferr.,  1.  c,  n.  15. 

*  Instr.  cit.,  §  Commissionis  ita;  ib.,  §  Quod  si.      '  Ad  Dubia,  §  iii.,  Votum. 

*  Instr.  cit.,  §  Commissionis  ita;  ib.,  §  Quod  si;  S.  C.  de  P.  F.,  Ad  Dubia,  §  i. 

*  Our  Counter-Points,  n.  55,  56. 


271  Criminal  Catises.  269 

alone  the  right  and  duty  to  grant  delays,  admit  exceptions, 
etc'  As  the  Commission  is  an  ecclesiastical  corporation, 
and  therefore  proceeds  as  a  body  corporate,  in  the  hear- 
ing of  causes,  it  follows  that  all  its  interlocutory  sentences 
are  rendered  by  the  vote  of  the  majority,  and  not  by  its 
president  alone.  Hence  the  interlocutory  sentences  of  our 
Commissions  of  Investigation  are  those  resolutions  of  the 
Commission  which  are  passed  either  tacitly  or  expressly,  by 
a  majority  of  its  members,  in  regard  to  incidental  matters, 
questions,  or  facts  connected  with  the  cause  on  trial. 

1 167.  Here  it  may  be  proper  to  observe  that  our  Commis- 
sions of  Investigation  must  on  the  one  hand  allow  both  the 
defence  and  the  prosecution  full  liberty  to  make  out  their 
case,  and  yet  on  the  other  cut  short  all  such  delays  and 
procrastinations  as  are  evidently  resorted  to  for  the  purpose 
of  evading  the  ends  of  justice.* 

1 168.  What  has  been  said  concerning  appeals  from  inter- 
locutory sentences  of  the  ecclesiastical  judge  proper,  seems 
to  apply  also  to  the  interlocutory  decisions  of  Commissions 
of  Investigation  in  the  United  States.  The  question,  how- 
ever, may  be  asked,  whether,  in  case  of  an  appeal  being  made 
from  the  interlocutory  sentence  of  a  Commission  of  Investi- 
gation, such  appeal  is  to  be  made  to  the  bishop,  of  whose 
tribunal  the  Commission  forms  part,  or  to  the  higher  judge 
— that  is,  the  Metropolitan  or  Holy  See  ?  We  think  the 
appeal  must  be  made  to  the  Metropolitan  or  Holy  See.  For 
although  the  Commission  of  Investigation  is  a  judicial  body, 
vested  with  judicial  power,  not  by  the  bishop,  but  by  law, — 
that  is,  by  the  Instruction  of  the  S.  C.  de  P.  F.,  dated  July 
20,  1878, — and  distinct  from  the  bishop  or  judge  proper,  it  is 
nevertheless  a  branch  or  part  of  the  bishop's  court,  and  in 
this  respect  morally  identified  with  him.  Hence  the  interloc- 
utory decisions  of  the  Commission  are  regarded  as  decisions 

^  Cf.  Instr.  cit.,  §  7.        '  Cf.  Instr.  cit.,  §  Commissionis  ita;  ib.,  §§  6,  7,  15. 


270  Of  the  Ordinary  Canonical  Trial 

of  the  bishop's  court.  The  appeal  against  them,  therefore, 
should  be  made  in  the  same  manner  in  which  they  would 
have  to  be  made  if  they  emanated  directly  from  the  bishop 
himself — that  is,  they  must  be  made  to  the  Metropolitan  or 
Holy  See.  Nor  can  it  be  objected,  that  as  the  appeal  from  a 
person  or  judge  delegated  must  be  directed  to  the  judge 
delegating,  so  also  from  the  Commission  to  the  bishop.  We 
deny  the  parity.  The  Commission  is  not  delegated  by  the 
bishop,  but  is  clothed  with  ordinary  power. 

§  2.  The  Final  Sentence  {Sententia  Definitivd). 

1 169.  Having  spoken  of  interlocutory  sentences,  we  come 
now  to  sentences  in  the  proper  sense  of  the  term,  and  which 
are,  properly  speaking,  the  subject-matter  of  this  whole  arti- 
cle— namely,  final  or  definitive  sentences.  A  definitive  sen- 
tence {sententia  Jinalis,  dcfinitivci)  is  one  by  which  the  judge 
pronounces  upon  or  decides  the  case  itself,  or  the  main  issue 
of  the  trial,  and  not  merely  an  incidental  point,  or  some  ques- 
tion arising  incidentally  during  the  proceedings.'  It  should 
be,  I,  either  absolutory— that  is,  it  should  absolve  the  accused 
of  the  crime  charged  against  him  ;  2,  or  condemnatory — i.e., 
declare  him  guilty,  and  condemn  him  to  the  proper  punish- 
ment ;  3,  or,  finally,  it  may  be  merely  declaratory — that  is,  it 
need  not  condemn  the  accused,  but  may  simply  declare  that 
he  is  guilty  of  the  crime  charged,  and  has  incurred  the  pun- 
ishment inflicted  ipso  jure  by  the  law  itself.  It  will  be  seen 
that  in  this  third  case  the  judge  does  not  impose  the  penalty, 
but  merely  declares  that  the  accused  has  committed  a  crime, 
for  which  the  law  itself  inflicts  the  penalty  ipso  facto.  Hence, 
too,  the  effect  of  a  declaratory  sentence  is  retroactive, — i.e., 
takes  effect  from  the  moment  the  crime  was  committed, — 
and  not  merely  from  the  time  the  declaratory  sentence  was 
pronounced.* 

'  Reiff.,  I.  2,  t.  27,  n.  9.  »  Schmalzg.,  1.  2,  t.  27,  n.  18. 


in  Criminal  Causes,  271 

1 1 70.  What  is  chiefly  required  on  the  part  of  the  judge 
(we  speak,  of  course,  of  the  ecclesiastical  judge)  in  order  that 
he  may  pronounce  sentence  lawfully?  i.  He  must  have 
competence  in  the  case  ;  2,  be  not  publicly  excommunicated  ; 
3,  he  must  be  prudent  and  learned  in  the  law ; '  4,  he  should 
not  be  animated  by  personal  motives,  such  as  dislike,  hatred  ; 
5,  nor  act  with  levity.  He  should  give  the  parties  a  full  and 
fair  trial,  and  carefully  and  impartially  weigh  the  evidence." 

1 171.  What  is  principally  requisite  on  the  part  of  the  sen- 
tence itself,  in  order  that  it  may  be  canonical?  i.  The  sen- 
tence should  be  absolute,  not  conditional.  Hence  this  sen- 
tence is  invalid  :  I  condemn  Titius,  if  he  has  been  proved 
guilty.  2.  It  should  be  clear  and  determinate,  not  vague  or 
obscure,  or  uncertain ; '  otherwise  it  is  null  and  void.*  3.  As 
a  rule,  it  should  be  conformable  to  the  bill  of  complaint  or 
libelhis  {conformis  libcllo) — that  is,  it  should  not  decide  any 
other  matter,  nor  pronounce  upon  any  other  demand,  than 
.that  which  is  contained  in  the  bill  of  complaint,  and  which 

was  consequently  the  subject  of  the  trial.^  We  say,  as  a  rule  ; 
for  there  are  some  exceptions.  Thus  the  rule  holds  only  in 
civil,  but  not  in  criminal  causes.  Nay,  in  criminal  causes  it  is 
not  necessary  for  the  prosecution  to  demand,  in  its  bill  of 
complaint,  that  a  certain  fixed  penalty  be  inflicted  upon  the 
accused.  For,  if  the  accused  is  found  guilty,  the  judge 
should  impose  the  penalty  which  the  law  decrees  for  the 
offence,  or  if  the  law  leaves  it  to  the  judge's  discretion,  the 
penalties  he  thinks  proper.' 

1 172.  4.  It  should  be  conformable  to  Xdcv^  or  conformis  juri 
— i.e.,  in  harmony  with  the  sacred  canons.  Now  a  sentence 
can  be  contrary  to  law  in  two  ways:  First,  because  it  is 
against  the  disposition  of  the  law  {contra  jus  constitutionis)  ; 

'  Novella  82,  Praefat.  *  Schmalzg.,  1.  c,  n.  27. 

'  §  Curare  32,  Inst,  de  Action,  (iv.  6).     *  L.  3,  4,  C.  de  Sent,  quae  sine  (7.  46). 

''  Clem.  Saepe  2,  §  Verum,  de  V.  S.  (v.  11);  Munchen,  1.  c,  vol.  i.,  p.  211,  n.  9. 

«  Reiff.,  1.  c,  n.  84. 


272  Of  the  Ordinary  Canonical  Trial 

in  other  words,  because  the  judge  decides  ofherwise  than  is 
decreed  by  law  or  established  by  custom — v,g.,  if  he  decides 
that  an  ecclesiastical  election  made  by  suspended  ecclesias- 
tics is  valid.  For  the  law  of  the  Church  expressly  declares 
that  an  election  by  suspended  ecclesiastics  is  null  and  void.' 
All  sentences  of  this  kind  are  ipso  jure  null  and  void,  and 
may  be  disregarded.  Nor  is  it  necessary  to  appeal  from 
them,  since  they  are  not  considered  as  having  been  pro- 
nounced at  all.'' 

1 173.  vS^(r(?;z^/j/,  because  it  is  against  the  right  of  anyone 
of  the  litigants  {contra  jus  litigatoris) — namely,  when  the 
judge  wrongfully  refuses  by  his  sentence  what  the  contend- 
ing party  has  sufficiently  proved  to  be  due  him.  This  sen- 
tence, though  unjust  so  far  as  concerns  the  merits  of  the 
case,  is  nevertheless  valid  until  it  is  revoked  by  the  superior 
judge,  on  appeal.' 

1 1 74.  How  is,  the  sentence  to  be  pronounced,  or  what 
other  conditions  are  chiefly  necessary,  in  order  that  it  may 
be  canonical?  i.  The  litigants  should  be  cited  to  hear  the 
sentence,  and  that  where  the  trial  preceding  the  sentence 
was  formal  or  ordinary,  by  three  simple  citations  or  one  per- 
emptory citation.  This  holds  so  true,  that  if  one  of  the  con- 
tending parties  is  not  cited  for  sentence,  the  latter  is  null 
and  void."  This  applies  even  in  the  case  of  interlocutory  sen- 
tences, which  are  of  such  a  nature  as  to  inflict  a  serious 
gravamen  upon  the  absent  party.^  We  said,  where  the  triat 
.  .  .  was  formal;  for  in  summary  trials  the  parties  must 
indeed  be  cited  to  hear  the  sentence :  yet  one  simple  citation 
is  sufficient."  As  trials  in  the  United  States  before  Commis- 
sions of  Investigation   partake,  as  we   have  frequently  ob- 

'  Cap.  16,  de  Elect,  et  elect.  pot.(i.  6). 

'  Cap.  I,  de  Sent.  (ii.  27);  ib.  Glossa,  v.  Sententia.      *  Reiff.,  1.  c,  n.  76. 

*  Ex   Clem.    Pastoralis   2,    de   Sent,    et   re   jud.    (ii.    11);  L.  7,   8,  9,  Cod. 
Quomodo  et  quando  judex  (vii.  43). 

*  Schmalzg.,  1.  c,  n.  50.  «  Clem.  Saepe  2,  de  V.  S. 


in  Crzmmal  Causes.  273 

served,  of  the  nature  of  canonical  summary  trials,  it  would 
seem  proper  that  when  the  trial  before  the  Commission  is 
over,  the  bishop  should  fix  a  day  for  sentence,  and  cite  the 
parties  to  hear  it. 

1 175.  Now  what  is  to  be  done  where  the  party  has  been 
cited  indeed  for  sentence,  but  fails  to  appear  on  the  day 
appointed  for  pronouncing  sentence  ?  If  he  is  contuma- 
ciously absent, — that  is,  if  he  refuses  to  appear  without  suffi- 
cient cause, — sentence  may  be  validly  pronounced  in  his 
absence.'  If  he  fails  to  appear,  not  through  contempt,  but 
for  just  reasons,  these  reasons  are  either  known  to  the  judge 
or  not.  If  they  are,  the  judge  cannot  validly  pronounce 
sentence  in  the  absence  of  the  party."  If  they  are  not,  the 
sentence,  if  pronounced,  is  indeed  valid,  but  must  be  revoked 
when  the  party  that  was  absent  proves  that  the  absence  was 
caused  by  good  reasons.' 

1 176.  2.  It  should,  on  pain  of  nullity,  be  pronounced 
after  due  trial,  conducted  with  the  prescribed  formalities.* 
These  formalities  differ,  of  course,  according  to  the  various 
kinds  of  trials.  Hence,  where  the  judge  should  proceed  by 
a  formal  or  solemn  canonical  trial,  he  must  observe,  in  the 
course  of  the  trial,  all  the  formalities  prescribed  by  the 
sacred  canons  for  such  trials.  Otherwise  the  trial  and  sub- 
sequent sentence  are  null  and  void.  Hence  the  different 
stages  of  the  trial,  such  as  the  bill  of  complaint,  the  citation, 
etc.,  must  be  carefully  conducted  in  the  manner  laid  down 
by  the  sacred  canons. 

1 1 77.  Where,  on  the  other  hand,  the  judge  (we  speak 
always  of  the  ecclesiastical,  not  secular  judge)  can  proceed 
by  an  extraordinary  trial, — that  is,  either  summarily,  or  ex 
notorio,   or   ex   informata    conscientia,   or  sola  facti    veritate 

»  L.  8,  C.  tit,  cit.  (vii.  43).  2  L.  7,  C,  1.  c. 

'  Cap.  iS,  de  Sent.  (ii.  27);  ib.  Glossa,  v.  Cum  Bertholdus. 
^  Cap.  24,  de  Sent.   (ii.   27);  ib.   Glossa  in  v.  Ex  alia  justa  causa;  Leg.  4,  C. 
de  Sent,  et  interl.  (vii.  45). 


2  74  Of  the  Ordinary  Canonical  Trial 

inspecta, — he  must  observe  the  formalities  peculiar  to  each 
of  these  kinds  of  proceedings.  Here,  by  the  way,  we  ob- 
serve, that  when  a  judge  is  authorized  by  the  superior  judge 
— v.g.,  2l  bishop  by  the  Pope — to  proceed  in  a  matter  or  case 
"  sala  facti  veritate  inspecta,"  he  is  not  bound  to  observe 
even  the  forms  of  a  summary  trial.  For  the  power  to  pro- 
ceed "  sola  facti  veritate  inspecta"  is  one  by  which  the  judge 
is  empowered  to  proceed  even  in  a  simpler  manner  than  in 
summary  causes,  as  he  can  dispense  with  all  the  formalities 
established  by  positive  law,  though  not  with  those  based 
upon  natural  law.'  This  power  is  usually  given  only  in 
cases  of  little  importance. 

1 1 78,  In  the  United  States,  the  Commission  of  Investiga- 
tion and  the  bishop  are  obliged,  in  hearing  and  deciding 
criminal  and  disciplinary  causes  of  ecclesiastics,  to  observe 
the  substantial  formalities  contained  in  the  Instruction  of 
the  S.  C.  de  P.  F.,  of  July  20,  1878  ;  otherwise  the  trial  and 
subsequent  sentence  of  the  bishop  wou^d  be  null  and  void.' 
And  here  we  remind  the  reader  of  wLat  we  have  already 
said,'  that  where  the  sentence  is  clearly  against  the  sacred 
canons  or  legitimate  custom — v.g.,  where  the  requisite  for- 
malities  of  trials  are  omitted,  as  just  stated ;  pr  where  a  judge 
is  incompetent  or  publicly  excommunicated,  the  sentence  is 
ipso  jure  void,  and  of  no  effect  whatever. 

1 1 79.  3.  In  ordinary  or  formal  canonical  trials,  the  sen- 
tence should  be  pronounced  by  the  judge  sitting  {sedens  pro 
tribunali),not  walking  or  standing, or  in  any  other  posture;* 
otherwise  the  sentence  is  invahd.  We  say,  in  formal  trials ; 
for  in  summary  trials  it  is  not  necessary  that  the  judge  should 
be  seated  when  he  pronounces  sentence ; '  he  may  occupy  any 
posture  he  chooses.  4.  It  should,  as  a  rule,  be  in  writing,  and 
be  read  from  the  manuscript  by  the  judge  himself.'    We  say, 

'  Reiff.,  1.  c,  n.  82.         »  Cf.  Schmalzg.,  1.  c,  n.  52.  »  Supra,  n.  1168. 

*  Cap.  ult.,  de  Sent,  et  re  jud.,  in  6°;  nov.  82,  cap.  3;  Reiff.,  1.  c,  n.  61. 

*  Clem.  2,  de  V.  S.,  §  Sententiam.  •  Cap.  ult.,  de  Sent.,  in  6\ 


in  Criminal  Causes.  275 

as  a  rule ;  for  in  matters  of  little  importance  it  need  not  be 
written  ;  and,  moreover,  judges  of  high  dignity — z^.^.,  bishops 
—can  have  it  read  and  published  through  others.  5.  It 
should  be  pronounced  in  a  public  place  ;  nay,  in  the  case  of 
an  ordinary  judge,  as  a  rule,  in  the  place  where  he  is  accus- 
tomed to  hold  court.  We  say,  rt:^  a  rule ;  for  the  bishop  may 
hold  court  and  pass  sentence,  either  personally  or  through 
others,  in  any  part  of  his  diocese.' 

1180.  6,  It  should  be  pronounced  on  the  day  and  at  the 
hour  appointed  in  the  citation  for  the  sentence  ;  otherwise 
the  sentence  is  null  and  void,  as  if  it  had  been  pronounced 
against  a  party  not  summoned  for  sentence.^  7.  It  should 
not  be  pronounced  on  Sundays,  and  holidays  of  obligation.' 

1 181.  8.  Generally  speaking,  the  judge  need  not  embody 
or  state  in  his  sentence  the  cause  or  reasons  therefor."  We 
say,  generally  speaking ;  for  the  following,  among  other  cases, 
are  excepted  from  this  rule :  {a)  criminal  causes ; "  {b)  espe- 
cially where  a  censure — that  is,  excommunication,  suspen- 
sion or  interdict — is  inflicted.  Thus  Pope  Innocent  IV.  (in 
the  Council  of  Lyons  held  in  1245)  expressly  says:  "  Quis- 
quis"  (judex  ecclesiasticus)  "  igitur  excommunicat  .  .  . 
causam  excommunicationis  expresse  conscribat,  propter 
quam  excommunicatio  proferatur  .  .  .  et  haec  eadem  in  sus- 
pensionis  et  interdicti  sententiis  volumus  observari.® 

1 182.  Hence  in  these  cases  the  bishop  or  ecclesiastical 
judge  (also  in  the  United  States)  is  bound  to  state  in  his  sen- 
tence the  cause — that  is,  the  crime  or  criminal  act — for 
which  he  inflicts  the  censure  or  penalty,  in  order  that  it  may 
appear  whether  such  cause — i.e.,  crime — is  sufficiently  grave 
to  justify  the  imposing  of  the  censure  or  penalty.  Nor  is  it 
sufficient  for  the  bishop  or  judge  to  state  this  cause  in  a 
general  way — z/.^.,  by  saying:  I  hereby  suspend  Titius  for 

'  Cap.  7,  de  Off.  orcl.,  in  6°.         ^  Schmalzg.,  1.  c,  n.  58.       ^  Cap.  i,  de  Feriis. 
<  Cap.  Sicut  16,  de  Sent.  (ii.  27).  *  Schmalzg.,  1.  c. ,  n.  61. 

^  Cap.  Cum  medicinalis  i,  de  Sent,  excom.,  in  6°  (v.  Ii). 


276  Of  the  Ordinary  Canonical  Trial 

good  and  valid  reasons.  He  must  specify  the  particular 
crime  or  criminal  act  on  account  of  which  the  punishment 
is  inflicted.  Hence  he  should  formulate  his  sentence — v.g., 
thus  :  I  hereby  excommunicate  Titius,  because  he  is  con- 
tumacious, having  failed  to  appear  before  me,  although  duly 
cited  ;  or  :  I  suspend  Titius,  because  he  is  guilty  of  drunken- 
ness,' 

1 183.  This  law  holds  so  strictly,  that  if  the  ecclesiastical 
judge,  in  violation  of  it,  inflicts  a  censure  without  expressing 
the  crime  or  cause  therefor,  the  superior  to  whom  an  appeal 
is  made  should  forthwith,  unhesitatingly,  and  without  first 
inquiring  into  the  justice  or  merits  of  the  appeal,  revoke  the 
censure  and  sentence,  and  moreover  in  other  ways  punish 
the  inferior  judge.''  The  same  holds  true  where  the  judge 
pronounces  sentence  of  excommunication  by  word  of  mouth, 
not  in  writing  ;  or  where  he  refuses  to  deliver  a  copy  of  his 
written  sentence  to  the  person  censured,  within  a  month, 
though  requested  to  do  so.^  Hence  it  does  not  seem  that 
the  sentence,  pronounced  in  violation  of  the  above  conditions, 
is  per  se  invalid — at  least  where  no  protest  or  appeal  has  been 
made.  It  is  however  subject  to  being — nay,  should  be  forth- 
with annulled  by  the  higher  judge,  on  appeal.*  Hence  in 
this  case,  as  in  most  other  cases,  the  aggrieved  party  should 
be  careful  to  protest  or  appeal,  lest  he  should  appear  to  con- 
sent to  the  grievance,  and  thus  render  valid  what  otherwise 
would  not  be  sustained." 

1 184.  {c)  Finally,  where  the  superior,  having  been  appealed 
to  in  a  case,  reverses  the  sentence  of  the  inferior  judge  (we 
speak  always  of  the  ecclesiastical  judge),  he  should  in  his  de- 
cision give  the  cause  or  reasons  therefor,  and  that  in  order 
to  shield  or  protect,  as  far  as  possible,  the  honor  of  the  in- 

'  Glossa,  in  cit.  cap.  Cum  medicinalis,  v.  Causam. 

'  Cap.  Cum  medic,  cit.;  ib.  Glossa,  v.  Difficultate.  '  lb. 

*  Glossa,  ib.  v.  Cum  medicinalis.  '  Cf.  Reiff.,  1.  c,  n,  103. 


in  Criminal  Causes'.  277 

ferior  judge.'  Examples  of  this  rule  are  given  in  the  cap. 
10,  de  Fid.  instr.  (ii.  22) ;  cap.  14,  de  Priv.  (v.  33);  cap.  18, 
de  Sent.  (ii.  27).  In  all  these  places,  the  Popes,  in  reversing 
the  sentences  of  inferior  judges,  that  had  been  appealed  to 
them,  always  state  the  reasons  why  they  reversed  said  sen- 
tences.'' 

§  3.  Chief  Effects  of  the  Final  Sentence — Res  Judicata. 

1 185.  The  chief  effect  of  the  final  sentence  is,  that  where 
the  person  who  loses  the  case,  or  is  condemned,  has  not  ap- 
pealed within  the  time  fixed  by  ecclesiastical  law, — namely, 
ten  days, — the  sentence  becomes  res  Judicata  ;  that  is,  the 
cause  or  litigation  comes  absolutely  to  an  end,  and  the  sen- 
tence acquires  such  force  and  authoritythat.it  must  be  re- 
garded as  truth, ^  and  can  no  longer  be  reversed,  and  the  per- 
son condemned  who  may  wish  to  appeal  against  it  can  no 
longer  be  heard.^ 

1 186.  By  res  Judicata  in  the  proper  sense  of  the  word, 
therefore,  canonists  commonly  mean  the  final  sentence  or 
judgment  itself,  not  indeed  as  soon  as  it  is  pronounced,  but 
only  when  de  facto  it  has  not  been  suspended  by  an  appeal, 
and  cannot,  owing  to  the  lapse  of  the  ten  days  allowed  for 
appealing,  be  any  longer  suspended.^  We  say,  in  the  proper 
sense  of  the  zvord ;  for  in  a  broad  sense  the  cause  itself,  or 
controverted  matter,  which  has  been  decided  by  the  final  sen- 
tence, is  also  styled  res  Judicata^  A  judgment  or  sentence, 
therefore,  is  said  to  have  passed  into  res  Judicata  when  its 
effect  is  not  and  cannot  be  any  longer  suspended. 

'  Glossa,  in  cit.  cap.  Cum  medicinalis,  v.  Exprimantur. 
^  Cf.  Miinchen,  1.  c,  vol.  i.,  p.  210. 

^  Thus  the  Roman  law,  adopted  by  the  canon  law,  says:   "  Res  judicata  pro 
veritate  accipitur." — Reg.  207  ff.  de  Reg.  jur. 

*  Cap.  13,  16,  de  Sent.  (ii.  27);   Reiff.,  1.  c,  n.  107;  Leur.,  For.  Eccl.,  1.  2,  t. 
27,  Q.  965,  Resp.  1°. 

*  ReilT.,  1.  c,  n.  105;  Schmalzg.,  1.  c. ,  n.  62.  *  Schmalzg.,  1.  c. 


2  7^  Of  the  Ordinmy  Canonical  Trial 

1 187.  It  is  therefore  pertinent  to  ask :  When,  or  at  what 
particular  time,  does  the  sentence  pass  into  res  judicata  ?  As 
a  rule,  the  sentence  becomes  res  judicata  when  the  person 
condemned  acquiesces  in  it,  whether  expressly — v.g.,  by  de- 
claring himself  ready  to  pay,  or  asking  for  time  to  pay,  the 
sum  of  money  to  which  he  is  condemned  ;  or  tacitly — v.g.,  by 
not  appealing  within  ten  days. 

1 188.  We  say,  as  a  ride  ;  for  the  following  among  other 
cases  are  excepted:  i.  Where  the  sentence  is  ipso  jure  null 
and  void — v.g.,  if  pronounced  by  a  judge  not  having  compe- 
tence in  the  case ;  or  if  it  is  in  open  violation  of  the  sacred 
canons  or  lawful  custom.  In  these  cases  the  sentence  may 
be  disregarded  altogether,  just  as  though  it  had  never  been 
pronounced.  No  appeal  is  therefore  necessary.  For  such 
a  sentence  has  no  effect  whatever,  since  it  has  no  validity. 
2.  When  the  sentence  is  based  upon  false  evidence,  such  as 
spurious  instruments,  corrupt  witnesses;'  provided  however 
it  is  proved  that  the  judge  was  influenced  by  or  based  his 
sentence  upon  this  false  evidence."  3.  If  the  sentence  is 
grounded  upon  mere  presumptions.  In  this  case  the  sen- 
tence can  always  be  reversed  as  soon  as  the  contrary  is  es- 
tablished by  real  proofs,  and  not  mere  presumptions.  4. 
Where  the  sentence  is  based  upon  the  testimony  of  experts. 
In  this  case  it  does  not  become  res  judicata,  but  can,  as  a 
rule,  be  revoked  at  any  time  as  soon  as  the  expert's  testi- 
mony is  proved  to  be  incorrect,  either  by  clear  evidence  or 
the  testimony  of  abler  experts.  We  say,  as  a  rule ;  the  ex- 
ception is  where  both  the  contending  parties  have  agreed 
upon  the  expert." 

1 1 89.  5.  When  the  sentence  decides  upon  the  validity  or 
invalidity  of  marriages,  it  does  not  become  res  judicata,  but 
may  always  be  revoked  whenever  it  is  shown  to.  be  erro- 
neous.*    6.  If  the  sentence  is  based  upon  error,  or  insufficient 

'  Cap   9,  de  Test.  (ii.  20).       *  Cap.  22,  de  Sent.  (ii.  27);  ib.  Glossa,  v.  Secuii. 
»  Reiff.,  1.  c,  n.  134.  ■♦  Cap,  9,  h.  t.  (ii.  27). 


in  Criminal  Causes.  279 

motives,  it  is  ipso  jure  null  and  void,  and  does  not  pass  into 
res  judicata,  and  therefore  can  always  be  reversed,  provided 
this  error  or  insufficient  cause  is  expressly  stated,  or  appears 
in  the  sentence.  7.  When  the  sentence  inflicts  a  censure — 
namely,  excommunication,  suspension  or  interdict.  For 
although  a  person  under  censure  cannot  appeal,  properly 
speaking,  after  ten  days,  he  can  at  any  time,  by  way  of  re- 
course, complain  of  the  injustice  of  the  sentence.  Conse- 
quently he  should  be  heard  always,  if  he  asks  for  absolution 
from  the  censure,  and  wishes  to  prove  the  injustice  of  the 
sentence,' 

1 190.  What  other  effects,  besides  that  of  res  judicata,  has 
a  definitive  sentence?  They  may  be  reduced  to  three  heads, 
some  of  which  regard  the  judge ;  others  the  matter  itself,  or 
cause  decided  ;  finall}^  others  the  litigants.  I.  Effects  as  to 
the  judge. — He  cannot  revoke  or  change  his  final  sentence 
(the  same  holds  of  an  interlocutory  sentence  having  the 
force  of  a  final  sentence),  even  when  he  sees  it  is  manifestly 
unjust,  except  where  the  sentence  is  ipso  jure  null  and  void.* 
This  holds  even  before  the  sentence  has  passed  into  res  judi- 
cata— that  is,  before  the  lapse  of  the  ten  days  allowed  for  the 
appeal.'  The  reason  is,  that  having  pronounced  final  sentence, 
he  is  functus  officio,  and  has  no  further  jurisdiction  in  the  case. 
We  say,  except  where  the  sentence  is  "  ipso  jure"  null  and  void ; 
since  such  sentence  is  no  sentence  at  all,  and  the  judge  who 
has  pronounced  it  is  regarded  as  not  having  pronounced  it 
at  all.  Hence  he  is  not  thereby  functus  officio,  and  still  retains 
jurisdiction  in  the  case,  until  he  pronounces  a  valid  sentence. 
Hence  he  can  himself  revoke  or  change  a  sentence  of  his 
which  is  ipso  jure  invalid,  though  it  is  more  becoming  that 
the  superior  judge  should  do  so. 

1 191.  n.  Effects    upon    the    litigants. — These    effects  are 

*  Cap.  36,  de  Off.  jud.  del.;  cap.  48,  de  Sent,  excom.;  Schmalzg.,  1.  c,  n.  65  (4). 

*  Leg.  55  ff.  de  Re  jud.  ^  Schmalzg.,  1.  c,  n.  78. 


28p  Of  the  Ordinary  Canonical  Tr'ial 

chiefly  the  following:  i.  If  no  appeal  is  interposed  within 
ten  days,  the  litigants  must  obey  the  judgment.  2.  As  far 
as  the  accused  or  defendant  is  concerned,  he  acquires,  if  he 
has  been  absolved  or  declared  not  guilty,  the  right  to  oppose 
the  exception  of  res  judicata  to  any  future  action  brought 
against  him  in  the  same  matter,  which  exception  is  a  bar  to 
any  such  future  action.' 

1 192.  III.  Effects  as  to  the  cause  itself  or  matter  decided. — 
As  we  have  already  seen,  the  effect  of  a  final  sentence,  which 
has  passed  into  res  judicata,  is  that  the  trial  or  cause  is 
wholly  ended,  and  cannot  be  tried  over  again  by  a  higher 
judge,  as  there  is  no  appeal  in  the  case.  For  the  law  of  the 
Church  presumes,  by  what  is  called  praesumptio  juris  et  de 
jure,  that  the  sentence  against  which  no  appeal  has  been 
interposed  is  just,  and  that  both  as  a  mark  of  respect  to  the 
authority  of  the  judge,  and  because  of  the  tacit  consent  of 
the  party  who  is  condemned,  implied  in  his  not  appealing. 
The  Roman  law,  adopted  by  the  Church,  is,  that  a  person 
who  does  not  appeal  tacitly  consents  to  and  ratifies  the  sen- 
tence pronounced  against  him."  Of  course,  what  we  have 
said  here  with  regard  to  the  effect  of  a  final  sentence,  in 
regard  to  the  cause  decided,  does  not  apply  to  the  cases 
enumerated  under  No.  1178,  where  the  sentence  does  not 
pass  into  res  judicata,  and  therefore  produces  no  effect,  even 
when  no  appeal  is  made. 

§  4.  Execution  of  the  Sentence. 

1 193.  After  the  judge  (ecclesiastical)  has  pronounced 
sentence  he  should  also  see  that  it  is  carried  into  effect  or 
executed.  By  the  execution  of  the  sentence  we  mean  the 
judicial  act  by  which  the  victor  or  person  who  gains  the 
cause  is  actually  or  de  facto  given  that  which  was  de  jure 

'  L.  4  ff.  de  Except,  rei  Jud.  (xliv.  2);  Reiff.,  1.  c,  n.  146. 
'L.  4  C.  de  Sent,  quae  sine  (vii.  46);  Reiff.,  1.  c.,  n.  108. 


ill  Criminal  Causes.  281 

obtained  by  him  through  the  sentence.'  We  say,  first, 
judicial  act ;  because  it  belongs  to  the  trial  or  judicial  pro- 
ceedings in  the  case,  and  forms,  so  to  say,  the  final  act  or 
consummation  of  the  whole  cause.  We  say,  secondly,  by 
ivJiich  the  victor,  etc. ;  to  show  the  difference  between  the 
sentence  and  its  execution.  For  by  the  sentence  the  vic- 
torious party  obtains  his  rights  by  words  or  orally,  while 
by  the  execution  he  acquires  them  in  fact  or  reality.  Hence 
the  execution  of  the  sentence  may  be  briefly  said  to  be  the 
carrying  into  effect  what  was  decreed  by  the  sentence. 

1 1 94.  Now,  when  should  the  sentence  be  executed.'* 
Before  answering,  we  premise :  Some  sentences  do  not 
stand  in  need  of  a  separate  execution,  but  carry  their  execu- 
tion with  themselves ;  while  others  must  be  executed,  other- 
wise they  have  no  effect  whatever.*  Sentences  of  the  first 
kind  are  chiefly  those,  i,  which  inflict  a  censure,  whether  of 
excommunication,  suspension,  or  interdict.  The  reason  is, 
that  such  a  sentence  produces  its  effect  of  itself,  and  without 
any  other  agenc3^  2.  Those  sentences  which  absolve  the 
accused.  For  the  accused,  by  the  very  fact  of  his  being 
absolved,  obtains  what  he  contended  for  during  the  trial. 
3.  Where  the  sentence  does  not  require  the  person  who  is 
condemned  to  do  a  positive  action,  in  order  to  undergo  the 
punishment  imposed  by  the  sentence,  but  merely  commands 
him  to  abstain  from  doing  something — v.g.,  where  a  person  is 
deprived  of  his  active  or  passive  vote  in  an  ecclesiastical  elec- 
tion. In  all  other  cases — v.g.,  where  the  ecclesiastical  judge 
imposes  a  pecuniary  fine,  or  dismissal  from  office  or  bene- 
fice, etc. — the  canonical  execution  must  follow  the  sentence." 

1 195.  We  now  answer:  i.  In  civil  causes  or  actions  (we 
speak,  of  course,  of  civil  causes  pertaining  to  the  ecclesias- 
tical forum)  the  sentence  pronounced  by  the  judge  cannot 

'  Schmalzg.,  1.  c,  n.  93.  »  Schmalzg.,  1.  c,  n.  93. 

^  Bouix,  de  Jud.,  vol.  ii.,  p.  239, 


282  Of  the  Ordinary  Canonical  Trial 

be  executed  immediately,  but  it  is  necessary  to  wait  at  least 
ten  days.  The  reason  is,  that  before  the  lapse  of  ten  days 
the  sentence  does  not  pass  into  res  judicata;  nay,  it  is  allowed 
to  appeal  from  it  within  that  time.'  We  say,  in  civil  causes  ; 
for  it  is  disputed  whether  this  holds  also  in  criminal  causes. 
With  Abbas  and  others  we  hold  the  affirmative — namely, 
that  the  above  rule  applies  also  to  criminal  causes.''  The 
reason  is,  that  in  criminal  causes  a  person  has  even  more  at 
stake  than  in  civil  causes,  and  should  therefore  be  allowed 
at  least  as  much  in  the  one  as  in  the  other.^  Of  course  we 
except  those  criminal  causes  which  do  not  admit  of  an 
appeal, — v.g.,  where  the  guilt  is  notorious ;  where  the  ac- 
cused has  been  convicted  on  his  own  confession.* 

1 196.  If,  however,  it  be  held  that  the  sentence  in  crimi- 
nal causes  may  be  executed  immediately,  and  without  wait- 
ing for  the  lapse  of  the  ten  days  allowed  for  appealing,  it 
would  be  necessary  for  the  condemned  person  to  appeal 
against  it  at  once  if  he  wished  to  have  the  execution  of  the 
sentence  suspended.* 

1 197.  By  whom  is  the  sentence  to  be  executed?  Not  by 
the  contending  parties  themselves, — z>.,the  victorious  party, 
— but  by  the  judge,  and  that  by  the  same  judge  by  whom  the 
sentence  was  pronounced,  at  least  if  he  be  an  ordinary  judge. 
We  sa)'',  if  he  be  an  ordinary  judge  ;  for  in  the  case  of  a  dele- 
gated judge  canonists  distinguish  between  delegates  of  the 
Pope  and  delegates  of  inferior  judges — v.g.,  of  bishops.  It  is 
certain  that  delegates  of  the  Holy  See  can  themselves  exe- 
cute their  sentence,  either  personall)^  or  through  others,  and 
that  within  a  year  from  the  time  it  was  pronounced.*  We 
say,  or  through  others ;  hence  a  papal  delegate  can  command 
a  bishop  to  execute  his  sentence.' 

'  Cap.  15,  de  Sent.  (ii.  27). 

'  Ap.  Reiff.,  1.  c,  n.  162;  Leur.,  For.  Eccl.,  1.  2,  t.  27,  Q.  983,  Resp.  4°. 
^  Ex  1.  6  fif.  de  Appell.  et  relat.  (xlix.  i).  ••  Cf.  supra,  n.  445  sq. 

*  Bouix,  1.  c,  p.  240.  6  Cap.  9,  26,  28,  de  Off.  del.  (i.  29). 

'  Reiff,  1.  c,  n.  169. 


in  Criminal  Causes.  283 

1 198.  It  is  disputed  whether  delegates  other  than  papal 
— v.g.,  delegates  of  bishops — can  execute  their  sentence  with- 
out a  special  mandate  to  that  effect.  Schmalzgrueber/  fol- 
lowing the  Glossa,"  holds  the  affirmative,  on  the  ground  that 
according  to  the  cap.  5,  de  Off.  del.  (i.  29),  a  person  or 
delegate  to  whom  is  committed  the  hearing  of  a  cause  re- 
ceives, by  that  very  fact,  full  power  in  all  matters  referring 
to  such  cause,  and  therefore  also  to  execute  the  sentence. 
The  same  cannot  be  said  of  arbitrators,  whether  voluntarily 
{arbitri  coinprondssarii)  or  necessarily  {arbitri  Juris)  chosen  by 
the  contending  parties.  They  can  only  pronounce  sentence, 
and  are  bound  to  leave  its  execution  to  the  ordinary  judge.' 

1 199.  A  fortiori,  neither  can  Commissions  of  Investiga- 
tion in  the  United  States  execute  their  verdict.  For  they 
are  not  judges  proper,  but  only  assessors  or  auditors  of  the 
bishop,  or  in  a  certain  sense  arbitrators  appointed  by  the 
law,  whose  office  expires,  so  far  as  a  particular  case  is  con- 
cerned, as  soon  as  they  have  given  their  opinion  on  the  case, 
in  the  manner  prescribed  by  the  Instruction  of  the  S.  C.  de 
P.  F.,  July  20,  1878,  §  9.  Hence  also  the  supplementary  In- 
struction issued  by  the  same  Sacred  Congregation  ^  expressly 
states  that  the  pronouncing  (and  by  implication  the  execut- 
ing) of  the  final  sentence  pertains  solely  to  the  bishop. 

1200.  By  whom  is  the  sentence  to  be  executed  when  the 
case  has  been  appealed  ?  By  the  judge  from  whom  or  by 
the  judge  to  whom  the  appeal  has  been  made  ?  We  distin- 
guish :  The  sentence  of  the  inferior  judge  is  either  reversed 
or  confirmed  by  the  judge  of  appeal.  In  the  first  case,  the 
execution  belongs  to  the  judge  of  appeal.  In  the  second,  the 
question  is  disputed.  According  to  Schmaizgrueber,"  the 
common  and  approved  opinion  of  canonists  holds,  i,  that 
where  the  judge  of  appeal  confirms  the  sentence  of  the  in- 

'  L.  c,  n.  95.  '  In  cap.  4,  de  For.  comp.  (ii.  2),  v.  Ipsius  solicitud'ne. 

•*  Cap.  4,  de  For.  comp.;  Schmalzg.,  I.  c,  n.  95. 

■*  Ad  Dubia  circa  modum,  §  iii.,  Votum.  *  L.  c,  n.  96,  97. 


284  Of  the  Ordinary  Canonical  Trial 

ferior  judge  only  tacitly  or  indirectly, — that  is,  where  he 
does  not  take  cognizance  of  the  cause  appealed,  but  simply 
declares  that  the  time  for  appealing  has  lapsed,  or  that  the 
appeal  has  been  abandoned,  and  that,  consequently,  the  case 
has  not  devolved  upon  him  by  the  appeal, — the  sentence  is  to 
be  executed  by  the  judge  from  vv^hom  the  appeal  has  been 
made;  2,  that,  however,  if  the  judge  of  appeal, upon  due  trial 
or  hearing  of  the  cause  appealed,  expressly  pronounces  the 
sentence  of  the  inferior  judge  to  be  just  {i.e.,  decides  male 
appellatum,  et  bene  judicatiini),  and  thus  directly  confirms  it,  he 
can  himself  execute  it.'  The  reason  is,  that  by  the  appeal 
properly  made,  entertained,  and  decided,  the  jurisdiction  in 
the  case  was  suspended,  or  taken  away  from  the  inferior 
judge,  and  transferred  to  the  superior,  or  judge  of  appeal. 

§  5.  Expenses  of  Eeclesiastical  Trials — By  ivhom  to  be  paid,  also 
in  the  United  States. 

1 201.  The  expenses  occasioned  by  trials  in  ecclesiastical 
courts,  also  with  us,  may  be  of  two  kinds  :  voluntar}-  and 
necessary.  The  voluntary  or  optional  {expensae  voluntariae, 
delicatae)  expenses  are  those  which  are  incurred  over  and 
above  what  is  necessary — v.g.,  a  very  liberal  honorary  to  the 
advocate.  The  necessar}'^  are  those  outlays  without  which 
the  trial  cannot  be  well  or  properly  carried  on  by  the  party, 
such  as  a  moderate  fee  for  the  advocate,  the  ordinary  travel- 
ling expenses  of  the  litigant  or  his  witnesses. 

1202.  The  law  of  the  Church  is  that  in  trials  before  the  ec- 
clesiastical judge  the  party  succumbing  should  never  indeed 
be  condemned  to  pay  the  voluntary  expenses  of  the  victor, 
but  that  he  should  be  condemned  to  defray  the  necessary,  if 
he  rashly  entered  upon  the  cause  or  trial,  whether  as  plain- 
tiff (prosecution)  or  defendant.'     This  holds  not  only  in  civil, 

'  L.  32,  §  5,  Sane,  C.  de  Appell.  (vii.  62). 

*  Cap.  2  et  5,  de  Dol.  et  cont.  (ii.  14);  L.  13,  §6,  Slve  autem,  Cod,  (iii.  i). 


in  Criminal  Causes.  2S5 

but  also  in  criminal  causes,'  and  that  whether  they  are 
ushered  in  or  tried  by  way  of  accusation,  denunciation  or 
inquiry,  or  exception.  However,  in  purely  criminal  causes 
a  distinction  should  be  made  between  the  plaintiff  or  prose- 
cution and  the  defendant.  The  latter  is  never  considered 
rash  for  defending  himself.  For  nobody  can  blame  him  for 
using  all  lawful  means  of  escaping  punishment,  even  though 
he  is  guilty.  Hence  he  cannot,  in  any  case,  be  condemned 
to  pay  the  costs.  With  the  former,  the  case  is  different,  and 
he  can  be  obliged  to  pay  the  costs.'' 

1203.  We  say,  if  he  'RAStWLY  entered  upon  the  cause  ;  because 
a  person  who  does  not  rashly  go  to  trial  cannot  be  con- 
demned to  pay  the  expenses.  Now  a  person  is  considered 
as  having  rashly  entered  upon  a  trial  or  cause,  not^only  when 
he  does  so  from  malice  or  deceit,  but  also  when  he  does  so 
imprudently  and  unadvisedly — i.e.,  without  due  diligence 
and  examination  of  the  matter,  and  without  taking  proper 
advice.' 

1204.  But,  on  the  other  hand,  a  person  is  not  regarded  as 
having  rashly  {teinere)  entered  upon  a  cause  when  he  has  a 
sufficient  reason  for  believing  in  the  justice  of  his  cause — v.g., 
if  he  took  the  advice  of  canonists,  and  was  informed  by  them 
that  his  cause  was  just*  We  observe  here  that  the  judge  is 
bound  to  condemn  the  party  who  loses  the  case  to  pay  the 
expenses  of  the  victor  onl}-  when  the  latter  so  asks,  either 
expressly  or  tacitly.'  Again  we  note  that  the  judge  can  at 
times  condemn  one  of  the  litigants  to  defray  the  expenses  of 
the  other,  even  before  the  final  sentence — v.g.,  where  one 
party  has  proved  his  allegation,  at  IqslsX.  prima  facie,  and  the 
other  delays  his  answer.^ 

1205.  What  are  the  penalties  incurred  by  ecclesiastical 
judges  for  any  injustice  committed  by  them  in  the  course  of 

'  Cap.  6,  de  Dol.  (ii.  14);  ib.  Glossa,  v.  Expensas. 

2  Reiff.,  1.  c,  n.  177.         ^  Schnialzg.,  1.  c,  n.  115.     <  Reiff.,  1.  c,  n.  180. 

5  lb.,  n.  191-196.         *  Cap.  5,  in  6°  (ii.  14);  Bouix,  de  Jud.,  vol.  ii.,  p.  244. 


286  Of  the  Ordinary  Canonical  Trial 

the  trial  ?  By  the  law  of  the  Church,  an  ecclesiastical  judge, 
whether  ordinary  or  delegate,  who  knowingly  pronounces 
an  unjust  sentence,  or  commits  some  other  act  of  injustice, 
in  the  course  of  the  trial,  whether  through  fear,  favoritism, 
hatred,  or  hope  of  gain,  is  bound  to  pay  the  party  whom  he 
has  injured  all  the  expenses  of  the  trial,  and  besides  incurs 
suspension  for  a  year  ab  officiis  divinis.  The  latter — i.c.^  the 
suspension — is  not  incurred  by  bishops,  as  they  are  not  ex- 
pressly mentioned  in  the  law.* 

1206.  What  has  been  thus  far  said,  in  the  present  article, 
regarding  the  indemnity  to  be  paid  by  the  succumbing  party 
and  by  the  judge,  applies  also  in  the  United  States,  both  in 
trials  before  our  Commissions  of  Investigation,  and  other 
judicial  proceedings.  For,  apart  from  any  positive  law  of  the 
Church,  the  very  law  of  nature  prescribes  that  where  an  ex- 
pense or  damage  has  been  wrongfully  and  wilfully  caused  by 
a  party,  it  should  also  be  made  good  by  that  party. 

Art.  IV. 

Of  Appeals. 

§  I.  Mode  of  Procedure  in  Appeals. 

1207.  We  have  already  spoken  at  length  of  appeals." 
Here  we  shall  add  only  a  few  remarks  in  regard  to  the  mode 
of  procedure  to  be  followed  in  appeals,  especially  as  appli- 
cable in  the  United  States.  Every  appeal,  as  we  have  seen, 
has  three  principal  stages :  namely,  {a)  the  making  of  the 
appeal — that  is,  the  declaration  made  by  the  appellant  to  the 
judge  a  quo,  either  orally  or  in  writing,  that  he  appeals ;  ib) 
the  bringing  of  the  appeal  thus  taken  before  the  higher 
judge  or  superior,  who  is  called  judex  ad  quern  ;  {c)  and  the 
farther  proceedings   before   the  judex  ad  quern;    in  other 

'  Cap.  I,  de  Sent,  et  re  jud.,  in  6°  (ii.  14);  Schm^iZg.,  1.  c,  n.  112. 
*  Sugra,  vol.  i.,  n.  442-454;  ib.,  p.  425. 


in  Crhnmal  Causes,  287 

words,  the  hearing  or  trial  of  the  appeal,  or  the  prosecution 
of  the  appeal  before  the  higher  judge. 

1208.  I.  First  stage  of  the  appeal. — As  to  the  first  stage, 
we  have  already  seen  that  both  in  judicial  and  extrajudicial 
appeals  the  appeal  must  be  taken,  and  the  judge  a  quo  as  a 
rule  notified  of  it,  within  ten  days.'  This  notification,  if  the 
appeal  is  made  ^d)  from  a  definitive  sentence,  or  {b)  quasi- 
definitive  sentence, — that  is,  an  interlocutory  sentence  having 
the  force  of  a  final  sentence,  or  inflicting  an  injury  that  can- 
not be  repaired  by  a  final  sentence,' — need  contain  only  the 
simple  declaration  that  an  appeal  is  taken  from  this  or  that 
sentence. 

1209.  But  where  the  appeal  is  from  a  simple  interlocutory 
sentence,  or  from  an  extrajudicial  gravamen,^  the  reasons  for 
the  appeal  must  be  specifically  set  forth,  so  that  the  judge 
a  quo,  who  can  himself  reverse  such  interlocutory  sentence 
and  redress  such  extrajudicial  grievance,  may  be  able  to  see 
whether  he  should  himself  correct  his  decision  or  not.*  Of 
course,  this  notification  should  not  contain  an3^thing  disre- 
spectful to  the  judge  a  quo!"  We  observe  that  in  speaking  of 
an  appeal  from  a  simple  interlocutory  sentence  we  do  not 
mean  an  appeal  or  recourse  proper,  but  simply  a  protest  be- 
fore the  judge  a  quo.  For,  as  we  have  seen,  no  appeals  are 
now  allowed  from  such  interlocutory  decisions. 

12 10.  We  said  above,"  that  the  judge  a  quo  must,  as  a 
rule,  be  notified  of  the  appeal.  This  rule,  like  other  rules, 
has  its  exceptions.  These  exceptions  are  {a)  where  the  judge 
is  inaccessible,  {b)  or  where  fear  prevents  the  appellant  from 
notifying  him.  In  both  these  cases  the  proper  course  to 
pursue  is  this:  The  appellant  can  and  should  send  his  noti- 
fication of  appeal  directly  to  the  judge  of  appeal,  instead  of 

'  Supra,  n.  444.  «  Reiff.,  1.  2,  t.  28,  n.  102.  Schmalzg.,  1.  2,  t.  28,  n.  61. 

*  Cap.  Cordi  nobis  i,  de  Appell.,  in  6°  (ii.   15);  cf.  tamen   ib.  Glossa,  v.  Vel 
extra. 

*  Miinchen,  1.  c,  vol.  i.,  p.  595,  n.  7.  «  lb.,  p.  531.        «  Supra,  n.  1208. 


288  Of  the  Ordinary  Canonical  Trial 

to  the  judge  from  wnom  he  appeals ;  or  if  this  is  impracti- 
cable, he  should  protest  or  declare,  in  the  presence  of  two  or 
three  worthy  persons,  that  he  wishes  to  appeal  against  an 
unjust  sentence  or  gravamen,  but  that  he  does  not  venture 
to  do  so.'  Both  the  notification  to  the  judge  of  appeal,  and 
the  protest  in  the  presence  of  worthy  persons,  must  take 
place  within  the  ten  days  allowed  for  appealing."  If  the 
notification  is  sent  directly  to  the  judge  of  appeal,  he  may 
be  requested  to  inform  the  judge  a  quo  of  the  appeal.  ^ 

121 1.  Next,  the  appellant  should  ask  and  receive  the 
apostoli  from  the  judge  a  quo  within  thirty  days."  These 
thirty  days  run  concurrently  with  the  ten  days  allowed  for 
appealing — that  is,  they  begin,  not  at  the  expiration,  but 
with  the  beginning  of  the  ten  days.*  Hence  the  request  for 
the  apostoli  may  be  and  is  very  properly  made  simultaneously 
with  the  appeal  itself.*  The  appellant  should  make  this 
request  humbly  and  urgently,  though  he  need  not  make  it 
more  than  once.  The  above  spaces  of  time  must  be  strictly 
observed,  both  in  judicial  and  extrajudicial  appeals.  Their 
non-observance  is  fatal  to  the  appeal — that  is,  causes  it  to  be 
null.  Hence  these  spaces  of  time  are  called  dies  fatales. 
This  fatality  to  the  appeal  ensues  even  where  the  omission 
or  non-observance  of  the  above  days  is  not  culpable  on  the 
part  of  the  appellant,  being  caused,  v.g.,  by  error,  ignorance, 
etc.  The  only  way  in  which  such  inculpable  omission  can 
be  remedied,  and  the  person  wishing  to  appeal  recover  the 
right  to  appeal,  is  by  his  reinstatement  or  restitutio  ift  inte- 
grum,'' of  which  canonists  treat  under  the  title  de  in  integrum 
restitutione. 

12 1 2.  n.  Second  stage  of  the  appeal. — The  judge  <«  ^«^  should 
give,^h?  appellant  the  apostoli  within  the  thirty  days,  as  above 
stated,  and  besides  a  certified  copy  of  the  entire  trial  and 

'  Cap.  73,  de  Appell,  (ii.  28).  *  Reiff.,  1.  c,  n.  89-93.  ^  Miinchen,  1.  c,  p.  531. 
*  L.  un.  ff  (xlix.  7);  Clem.  2,  de  Appell.  (ii.  12);  Schmalzg.,  1.  c,  n.  75. 


m  Criminal  Causes.  289 

proceedings  of  the  first  instance.  This  ends  the  proceedings 
before  the  judge  a  quo.  The  second  stage  of  the  appeal,  as 
we  have  seen,  is  the  bringing  of  the  appeal  before  the  higher  * 
judge.  The  letter  or  instrument  by  which  the  appellant 
brings  his  appeal  before  the  higher  judge  should  state,  in 
general,  the  grievance  or  wrong  suffered  by  the  sentence  of 
the  inferior  judge,  and  pray  for  a  new  hearing  and  decision 
of  the  cause.  It  should  also  mention  that  a  notification  of 
the  appeal  was  sent  to  the  judge  a  quo,  and  that  the  apostoli 
were  asked  for,  etc.  In  a  word,  this  letter  should  give  the 
judge  ad  quern  all  such  information  as  will  enable  him  to  know 
that  the  proper  formalities  have  been  complied  with,  and 
that  consequently  the  appeal  has  been  legitimately  inter- 
posed. Besides,  if  anything  has  been  attempted  by  \}s\q  judex 
a  quo,  pending  the  appeal,  this  should  also  be  mentioned.* 

12 1 3.  Now,  when  must  the  appellant  thus  bring  his  appeal 
before  the  superior  or  judge  of  appeal  ?  He  must  certainly 
do  so  within  a  year  from  the  day  he  made  the  appeal,  as  only 
a  year,  and  for  just  cause  two  years,  are  granted  for  hearing 
and  deciding  appeals.  But  it  is  not  certain  at  what  particu- 
lar time  during  the  year  this  is  to  be  done.  Some  hold  that 
where  the  judge  «^?/^  does  not  fix  the  time  (as  he  can,  though 
only  within  certain  limits),  it  must  be  done  six  months  from 
the  day  the  appeal  was  first  made.''  The  safest  way  is  to  do 
so  as  soon  as  possible,  in  order  to  give  the  judge  ad  queni 
ample  time  to  try  the  cause.^ 

12 14.  III.  Third  stage  of  the  appeal.— T\iq  third  stage 
refers  to  the  trial  or  hearing  of  the  appeal  by  the  7W^jr<a:^ 
quem.  When  the  latter  receives  an  appeal,  a  twofold  office 
or  duty  devolves  upon  him  ;  namely,  first,  to  examine  {a) 
whether  the  requisite  formalities  have  been  observed — i.e., 
whether  the  appeal  was  made  within  the  ten  days  prescribed, 
etc. ;  ip)  whether  there  are  just  grounds  or  reasons  for  ap- 

'  Miinchen,  1.  c,  vol.  i.,  p.  549,  n.  12.  ^  Craisson,  n.  5985. 

^  Schmalzg.,  1.  2,  t.  28,  n.  79. 


ago  Of  the  Ordinary  Caiionical  Trial 

pealing :  secondly,  if  these  points  be  decided  in  the  affirma- 
tive, it  becomes  his  duty  and  right  to  proceed  to  the  rehear- 
ing of  the  whole  case,  as  tried  in  the  first  instance. 

12 1 5.  From  this  it  will  be  seen  that  the  proceedings  before 
\k^Q  judex  ad  quern  are  divided  into  a  preliminary  hearing,  or 
that  which  refers  to  the  admissibility  of  the  appeal;  and  into 
the  subsequent  principal  rehearing  or  retrial  of  cause  itself 
as  appealed  from  the  first  instance.'  Here  we  observe,  that 
where  the  appeal  is  from  a  final  judicial  sentence,  or  an  in- 
terlocutory sentence  having  the  force  of  a  final  sentence,  or 
inflicting  an  injury  that  cannot  be  redressed  by  a  final  sen- 
tence, the  judge  of  appeal  can  take  cognizance  of  the  appeal, 
and  therefore  cite  the  appellee  and  appellant  before  him, 
even  before  the  appellant  has  proved  that  there  is  just  cause 
for  appealing.*  For  in  these  appeals  jurisdiction  devolves 
upon  the  judge  of  appeal  immediately,  once  the  appeal  has 
been  made,  and  before  it  is  shown  that  there  is  just  cause  for 
the  appeal.  Where,  however,  the  appeal  is  from  a  simple 
interlocutory  sentence  (we  speak  of  the  law  as  contained  in 
the  decretals  ;  for  at  present  it  is  not  allowed  to  appeal  from 
such  interlocutory  sentences,  the  Council  of  Trent  having 
abolished  such  appeals),  the  judge  ad  quern  cannot  admit  the 
appeal  until  the  appellant  has  proved  that  he  has  just  cause 
for  appealing." 

1 2 16.  Hence  in  such  simple  interlocutory  sentences, 
— when  it  was  allowed  to  appeal  from  them,  namely,  before 
the  Council  of  Trent, — it  was  necessary  for  the  appellant  to 
state  in  his  letter  of  appeal  to  the  judge  a  quo  such  reasons 
as  would,  if  proved,  justify  the  appeal,  but  it  was  not  neces- 
sary actually  to  prove  these  reasons.     But  before  the  judge 

'  Miinchen,  1.  c,  p.  550,  n.  13. 

*  Cf.  cap.  Romana  3,  de  Appell.,  in  6°  (ii.  15);  ib.  Glossa,  v.  Definitivam; 
Schmalzg.,  1.  2,  t.  28,  n.  121. 

"  Cap.  70,  de  Appell.  (ii.  28);  cap.  59  (ii.  28);  cap.  3,  de  Appell.,  in  6°' 
MUnchen,  1.  c,  p.  551. 


in  Criminal  Causes.  291 

ad  qucin,  he  was  obliged  not  only  to  state  but  also  to  prove 
these  reasons  before  his  appeal  could  be  admitted  by  the 
judge  of  appeal. 

1 2 17.  Whether  appeals  from  extrajudicial  acts  or  extra- 
judicial final  sentences  or  grievances  are  in  this  respect 
placed  on  an  equal  footing  with  appeals  from  simple  inter- 
locutory sentences,  is  not  altogether  apparent.  We  think 
there  is  foundation  in  the  law  of  the  Church  for  maintaining 
that  such  extrajudicial  grievances  may  be  placed  on  an 
equal  footing  with  final  judicial  sentences,  and  that,  there- 
fore, in  case  of  appeal  against  them  jurisdiction  devolves 
upon  \\iQ  judex  ad  qiicni  to  try  such  appeal  even  before  the 
appellant  has  shown  or  proved  that  he  has  just  cause  for 
appealing, 

12 1 8.  Mode  of  procedure  before  ///^  "  JUDEX  AD  QUEM,"  in 
the  hearing  or  trial  of  the  cause  appealed. — When  the  judge  of 
appeal,  in  the  preliminary  hearing  or  examination  of  the  ap- 
peal, finds  and  decides  that  the  appellant  has  complied  with 
the  necessary  formalities, — v.g.,  appealed  within  the  ten  days, 
— and,  moreover  (where  this  is  required),  proved  that  there 
is  just  reason  for  appealing,  the  whole  case  devolves  eo  ipso 
upon  him,  either  with  a  suspensive  (as  is  the  case  usually  in 
appeals  from  final  judicial  sentences),  or  only  a  devolutive 
effect  (which  is  the  case  frequently  in  appeals  from  extra- 
judicial acts).  Hence  it  becomes  his  right  and  duty  to  pro- 
ceed to  the  hearing  of  the  cause  itself  as  appealed.  Here 
we  observe  that  whenever  there  is  a  doubt  as  to  the  justice 
or  admissibility  of  an  appeal,  the  appeal  should  be  admitted. 
For  an  appeal  is  a  means,  nay,  one  of  the  best  means,  of  a 
legitimate  defence,  which  should  not  be  denied,  except 
where  it  is  being  manifestly  abused.' 

1 2 19.  The  mode  of  procedure  in  the  hearing  or  trial  of 
the  cause  appealed — that  is,  the  manner  in  which  the  appeal 

'  MUnchen,  1.  c,  p.  527,  n.  15. 


292  Of  the  Ordinary  Canonical  Trial 

is  tried  before  the  judge  of  appeal — is  substantially  the  same 
as  that  observed  in  the  proceedings  or  trial  of  the  first 
instance,  or  before  the  judge  a  quo,  though  somewhat  shorter 
and  more  summary.'  We  proceed  to  give  a  brief  outline 
of  it. 

1220.  As  the  appellant  becomes  the  plaintiff,  so  far  as  the 
appeal  is  directly  concerned,  it  follows  that  the  burden  of 
proof,  in  this  respect,  rests  upon  him.  Hence,  when  the  judge 
ad  quern  has  decided  to  entertain  the  appeal,  it  becomes  the 
appellant's  right  and  duty  to  produce  his  proofs  before  the 
judge  of  appeal  within  a  time  fixed  by  the  latter.  The  mode 
in  which  the  appellant  should  proceed  with  his  proofs  is  as 
follows :  First,  he  should  draw  up  a  written  statement  as 
full  and  complete  as  possible  of  his  grievances,  and  hand  it 
to  the  judge  of  appeal.  Next,  he  should  produce,  one  by 
one,  the  various  proofs — v.g.,  witnesses,  letters,  etc. — to  sub- 
stantiate his  written  allegations. 

122 1.  When  the  appellant  has  given  in  his  evidence,  both 
in  writing  and  orally,  a  copy  of  the  appellant's  allegations 
and  testimon}'-,  together  with  the  minutes  of  the  proceedings, 
is  given  the  appellee  (at  the  latter's  expense)  by  order  of  the 
judge  of  appeal,  so  as  to  enable  the  appellee  to  prepare  his 
answer  and  submit  his  proofs  in  rebuttal.  When  the  ap- 
pellee has  handed  in  his  reply,  and  substantiated  it  by  proper 
proofs,  the  judge  ad  quern  may  proceed  to  the  sentence, 
unless  he  finds  it  desirable  to  obtain  a  clearer  knowledge  of 
the  case.  In  the  latter  case  the  appellant  is  given  a  copy 
of  the  appellee's  answer,  proofs  submitted,  and  of  the  min- 
utes of  the  court  on  this  head,  and  he  is  allowed  to  file  a 
rejoinder.  Both  parties  may  be  confronted  with  the  other 
side's  witnesses.  When  both  parties  have  exhausted  all 
their  arguments,  proofs,  etc.,  the  judge,  after  having  taken 
time  to  weigh  everything  carefully,  should  pronounce  sen- 
tence.'    We  observe  here  that  the  acts  of  the  trial  in  the 

1  MUnchen,  1.  c,  p.  553,  n.  14.  «  lb.,  pp.  553,  554. 


in  Criminal  Causes.  293 

first  instance  can  and  should  be  made  use  of  by  both  parties 
in  order  to  establish  their  respective  positions. 

1222.  We  said  above/  so  far  as  the  appeal  is  directly  co7i- 
cerncd ;  for  so  far  as  regards  the  merits  of  the  main  cause, 
or  of  the  cause  appealed,  the  burden  of  proof  rests  upon  the 
same  parties  upon  whom  it  did  or  would  rest  in  the  trial  of 
the  first  instance.  From  these  principles  it  follows  that  the 
burden  of  proof  rests  upon  the  appellant  with  regard  to  the 
lawfulness  of  the  appeal,  and  also  the  grievances  on  account 
of  which  he  appeals.  In  other  words,  he  must  prove  {a)  that 
his  appeal  is  legitimate — i.e.,  made  in  due  form,  {b)  and  that 
the  grievances  complained  of  have  really  been  inflicted  upon 
him.  It  follows,  moreover,  that  so  far  as  the  cause  appealed 
itself  is  concerned,  the  appellee,  who  was  the  prosecutor 
in  the  lower  court,  must  prove  his  charges,  just  the  same  as 
he  was  obliged  to  do  in  the  first  instance.'' 

1223.  Here  it  is  proper  to  ask:  Whether  and  how  far 
the  appellant  (the  same  holds  of  the  appellee)  is  obliged,  in 
the  trial  of  the  appeal  or  cause  appealed,  to  confine  himself 
to  the  matters  or  grievances,  and  the  proofs  or  testimony 
therefor,  of  the  first  trial,  or  trial  in  the  first  instance ;  or 
whether  and  how  far  he  can  allege  new  matters  or  griev- 
ances, and  submit  new  testimony  in  support  of  such  new 
matters  or  complaints?  He  cannot  introduce  an  entirely 
new  matter  or  grievance — that  is,  one  which  is  altogether 
foreign  to  or  disconnected  with  the  cause  or  matter  or 
grievance  as  tried  in  the  first  instance. 

1224.  But  he  has  the  right  to  bring  in  or  submit  any  new 
matter,  question,  allegation,  complaint,  or  exception  what- 
ever, and,  of  course,  also  prove  it,  by  new  testimony — v.g.^ 
by  new  witnesses  or  documents — not  produced  at  the  first 
trial,  provided  it  arises  from,  or  is  in  any  way  connected 
with,  or  has  any  bearing  upon,  the  cause  or  matter  as  tried 

'  Supra,  n.  1220.  *  Schmalzg.,  1.  c,  n.  103. 


294  Of  the  Ordinary  Canonical  Trial 

in  the  first  instance.'  The  appellant  may  also  produce 
additional  or  new  proofs  of  matters  or  grievances,  which 
were  alleged  indeed  on  the  first  trial,  but  not  proven,  or 
only  insufficiently  proven."  The  appellee  has  of  course  the 
same  right  in  his  reply  or  defence.' 

1225.  Observe,  however,  that  the  above  applies  to  final 
judicial  sentences,  or  interlocutory  sentences  having  the 
force  of  a  final  sentence,  but  not  to  appeals  from  simple 
interlocutory  sentences,  which,  moreover,  are  no  longer 
admissible,  having  been  abolished  by  the  Council  of  Trent. 
But  are  the  above  principles  applicable  to  extrajudicial 
appeals  ?  In  other  words.  Can  the  appellant  (the  same 
applies  to  the  appellee)  make  use  of  new  matter  or  griev- 
ances and  proofs  therefor,  in  the  sense  stated,  in  extrajudi- 
cial appeals?  Two  kinds  of  extrajudicial  appeals  may  be 
distinguished :  one  against  extrajudicial  acts,  in  the  wide 
sense  of  the  term — namely,  acts  done  indeed  out  of  regular 
judicial  proceedings,  but  yet  by  the  judge  and  in  connection 
with  the  trial ;  the  other  kind  against  acts  which  are  extra- 
judicial in  the  strict  sense — namely,  acts  done  without  any 
judicial  proceedings,  and  having  no  connection  with  them 
— v.g.,  appointments  to  parishes. 

1226.  Now  all  canonists  admit  that  in  extrajudicial  ap- 
peals of  the  first  kind  the  causes  of  the  appeal  or  grievance 
must  be  specified,  and  no  new  allegations  or  grievances  or 
matters  can,  as  a  rule,  be  made  or  proved,  beside  those 
which  are  expressed  in  the  notification  of  the  appeal  as  sent 
to  XhG, Judex  a  quo*  Whether  this  applies  also  to  extrajudi- 
cial appeals  of  the  second  class,  seems  controverted.  The 
common  opinion  of  canonists  is  in  the  affirmative,  or,  rather, 

'  Cap.  10,  de  Fid.  Instr.  (ii.  22);  ib.  Glossa,  v.  Hujusmodi  exceptio;  L.  6, 
Cod.  de  Appel.  (vii.  42);  L.  4,  Cod.  de  Temp.  Appell.  (vii.  43);  Schmalzg.,  1.  2, 
t.  28,  n.  60.  *  L".  4,  C.  cit.  '  Mtinchen,  1.  c,  p.  556,  n.  16. 

^  Cap.  62,  de  App.  (ii.  28);  ib.  Glossa,  v.  Dummodo  haec;  Clem.  5,  de  Ap- 
pell. (ii.  12);  ib.  Glossa,  in  cas. 


in  Criminal  Causes.  295 

seems  so,  because  they  are  very  obscure  and  disappointing 
in  the  matter.'  Those  who  hold  the  negative,  contend  that 
the  texts  of  canon  law,'  as  quoted  by  those  who  hold  the 
affirmative,  all  speak  of  appeals  from  interlocutory  sentences 
and  from  extrajudicial  sentences  of  the  first  kind.  In  fact, 
the  law  is  not  favorable  to  the  latter,  as  they  simply  tend  to 
obstruct  and  delay  judicial  proceedings,  which,  however,  is 
not  the  case  with  extrajudicial  appeals  of  the  second  kind. 
The  safer  way  is,  of  course,  to  enumerate,  even  in  the  latter 
case,  all  the  grievances,  and  specify  all  the  reasons  and 
causes  upon  which  the  complaint  is  based. 

1227.  Whatever  may  be  said  on  this  matter,  it  is  certain 
that  in  all  extrajudicial  appeals  new  allegations  and  com- 
plaints may  be  made,  and  proved  by  new  proofs,  in  the  fol- 
lowing cases:  i.  Where  a  new  cause  of  complaint  has  arisen 
or  only  become  known  after  the  appeal  has  been  lodged ; 
2.  Where  the  judge  a  quo  refuses  to  admit  other  causes  of 
complaint  alleged  by  the  appellant.  3.  Where  an  injury  is 
to  be  inflicted  that  cannot  be  remedied  by  a  final  sentence.^ 

1228.  What  has  been  said  will  be  better  understood  if 
we  consider  the  reasons  or  objects  for  which  appeals  are 
established.  These  reasons  are,  chiefly:  i.  In  order  to 
remove  the  grievance  unjustly  inflicted.  2.  To  correct  the 
injustice,  inexperience,  want  of  knowledge,  or  other  defect 
of  the  judge  in  the  first  instance,  3,  To  enable  the  htigant 
who  either  through  ignorance  or  negligence  has  failed  to 
establish  his  case  properly  in  the  first  instance,  to  remedy 
this  defect  in  the  second  instance." 

1229.  Q.  Do  the  above  principles  concerning  the  mode  of 
procedure  to  be  followed  in  the  hearing  of  appeals  apply 
also  to  appeals  made  in  the  United  States,  according  to  the 
Instruction  of  the  S.  C,  de  P,  F.,  of  July  20,  1878  ? 

'  Cf.  Schmalzg.,  1.  c,   n.  6i,  64;  Miinchen,  1.  c,  p.  595,  n.  7. 

**  Cap.  62,  de  App. ;  cap.  i  et  3,  de  App.,  in  b"  (ii.  15);  Clem.  5,  de  App. 

"  Schmalzg.,  1.  c,  n.  64.  •»  Schmalzg.,  1.  c,  n.  6, 


V 


296  Of  the  Ordinary  Canonical  Trial 

A.  They  do  substantially.  For,  as  we  shall  presently 
show,  the  mode  of  hearing  appeals  to  be  followed  by  the 
metropolitan,  with  us,  as  prescribed  by  said  Instruction,  is 
substantially  the  same  as  the  one  we  have  above  described. 
In  fact,  the  Instruction  says  :  "  Si  vero  contingat  ut  a  senten- 
tia  in  curia  episcopali  prolata,  ad  archiepiscopalem  provo- 
cetur,  metropolitanus  eadeni  methodo  in  causae  cognitione  et 
decisiofie  proccdatT '  In  other  words,  the  metropolitan  is 
bound  to  proceed,  in  hearing  and  deciding  cases  appealed 
to  him,  in  the  same  manner  in  which  the  bishop  is  obliged 
to  proceed  in  the  trial  of  the  case  in  the  first  instance. 

1230.  Now  this  mode  of  procedure  is  substantially  the 
same  as  that  prescribed  for  appeals  by  the  general  law  of  the 
Church,  as  already  delmeated.  We  now  proceed  to  give  a 
brief  description  of  it.  First,  when  an  appeal,  with  us,  has 
been  made  to  the  metropolitan,  the  latter  upon  receiving  it 
from  the  appellant,  and  finding  that  the  reasons  given  for  it 
are  not  frivolous,  or  manifestly  made  for  the  sole  purpose  of 
delaying  justice  or  the  execution  of  the  sentence  of  the 
bishop,  should  receive  or  entertain  it.  We  say,  aiid finding 
that  the  reasons  arc  not  frivolous ;  hence  it  will  be  found  that 
the  superior  will  very  rarely  find  himself  obliged  to  reject 
an  appeal.  For,  as  already  shown,  the  right  of  appeal  is 
founded  in  the  law  of  nature,  since  it  is  one  of  the  means  of 
a  legitimate  defence,  and  a  protection  to  innocence.'  Con- 
sequently, where  there  is  a  doubt  as  to  its  admissibility  it 
should  be  received. 

123 1.  Before  proceeding  to  the  hearing  of  the  case  itself, 
it  would  seem  proper  for  the  metropolitan,  where  the  nature 
of  the  case  permits  it,  to  use  his  good  offices  toward  effecting 
an  amicable  settlement  between  the  appellant  and  the  appel- 
lee.'    Should  his  efforts  in  this  direction  prove  abortive,  he 

'  Instr.  cit.,  §  17,  Si  vero.  *  Schmalzg.,  1.  c,  n.  6. 

^  Cf.  Instr.  cit.,  §  i,  Ad  commissionem. 


in  Criminal  Causes.  297 

will  proceed  to  convene  the  Commission,  and  place  the  whole 
case  before  it.  Accordingly  he  appoints  a  day  for  the  meeting 
of  his  Commission  of  Investigation,  informing  each  member 
of  the  Commission,  by  letter,  of  the  place,  day,  and  hour  of 
the  meeting.'  A  citatory  letter  is  also  sent  to  the  appellee,  or 
diocesan  promoter,  acting  for  the  bishop,  informing  him  of 
the  time  and  place  of  the  Commission's  meeting,  and  requiring 
him  to  be  present  in  order  to  answer  and  combat  the  appeal." 
The  appellant  must  of  course  be  also  notified  of  the  time 
and  place  of  the  meeting,  and  required  to  present  his  case. 

1232.  On  the  day  appointed,  the  appellant  or  his  advo- 
cate is  first  heard  by  the  Commission.  First  he  reads  to  the 
Commission  the  written  statement  of  his  cause  as  appealed. 
Next  he  produces  his  proofs — v.g.,  witnesses,  letters,  the 
documents  or  acts  of  the  first  trial,  etc' 

1233.  Next  the  appellee — v.g.,  bishop's  official  or  his  advo- 
cate, is  given  by  the  Commission  a  copy  of  the  appellant's 
statement,  unless  this  has  been  done  already.  We  say,  unless 
this  has  been  done  already ;  for  where  prudence  does  not  for- 
bid, the  metropolitan  should  forward  a  copy  of  the  appel- 
lant's statement,  as  sent  to  him  in  the  appeal,  to  the  appellee 
or  bishop's  curia,  simultaneously  with  the  citation.*  Or 
again  the  appellee  or  bishop's  curia  may  have  been  already 
sufficiently  informed  of  the  nature  of  the  appeal,  by  the  fact 
that  the  appellant,  in  his  notificafion  of  appeal  to  the  judge 
a  quo,  has  enumerated  all  his  grievances. 

1234.  Having  been  furnished  with  a  full  copy  of  the 
appellant's  statements,  proofs,  and  the  minutes  of  the  pro- 
ceedings, or  having  been  informed  of  them  otherwise,  as  just 
seen,  the  appellee  prepares  his  reply  and  the  proofs  in  its 
support,  and  on  the  day  fixed  by  the  Commission  goes  be- 
fore the  latter  body,  and  there  reads  his  written  answer  to 

'  Cf.  ib.,  §  3,  Locum.  '  Cf.  ib.,  §  4,  Per  litteras. 

'  Cf.  Instr.  cit.,  §  6,  Relatio  causae.  *  Cf.  ib.,  §  4,  Per  litteras. 


298  Of  the  Ordinary  Canonical  Trial 

the  appellant's  allegations  and  proofs,  is  subject  to  cross- 
examination  by  the  Commission,  and  produces,  one  after 
another,  his  proofs.' 

1235.  Then  a  copy  of  the  appellee's  answer,  proofs,  etc., 
together  with  the  minutes  of  the  proceedings,  is  given  the 
appellant  (unless  the  case  is  too  clear  to  admit  of  further 
argument),  and  he  is  allowed  to  file  a  rejoinder ;  and  vice 
versa,  the  appellee  is  given  the  same  privilege,  and  so  on, 
until  both  parties  have  exhausted  their  arguments  or  proofs. 
The  witnesses  are  examined  as  on  the  first  trial." 

1236.  Is  it  allowed  in  the  United  States  to  introduce  new 
grievances  or  allegations,  and  submit  new  proofs  therefor,  in 
the  sense  stated  (supra,  n.  1224),  in  appeals  from  final  sentences 
of  bishops,  pronounced  after  trial  before  the  Commission  of 
Investigation  ?  It  would  seem  that  the  negative  ought  to  be 
maintained.  For,  as  we  have  seen,'  it  is  the  common  opinion 
that  in  extrajudicial  appeals  no  grievances  other  than  those 
expressly  stated  in  the  appeal  sent  to  the  judge  a  quo  can  as 
a  rule  be  submitted  or  proved.  Now  the  appeals,  with  us, 
in  question  are  extrajudicial  appeals.  The  reason  is  that  the 
trial  or  investigation  before  the  Commission  is  not  2i  processus 
Judicialis, — i.e.,  a  canonical  trial, — and  therefore  the  final  sen- 
tence of  the  bishop,  as  based  or  consequent  upon  such  trial, 
is  not  a  judicial,  but  merely  an  extrajudicial  sentence. 

1237.  Notwithstanding  these  arguments,  it  would  seem 
that  the  affirmative  is  the  true  opinion.  In  fact,  the  sentence 
of  the  bishop  in  the  case  is  expressly  called  a  judicial  and 
definitive  sentence — sententia  judicialis  ct  definitiva — by  the 
S.  C.  de  P.  F.,  in  its  supplementary  declarations  concerning 
the  Instruction  of  July  20,  1878.'  The  same  Sacred  Congre- 
gation expressly  calls  the  functions  and  proceedings  of  the 
Commissions  of  Investigation  judicial  acts,*  and,  moreover, 

'  Cf.  Instr.  cit.,  §7,  Deinde.        «  Cf.  ib.,  §  11,  12,  13,  15.        ^  Supra,  n.  1226. 
*  S.  C.  de  P.  F.,  Ad  Dubia,  §  iii.,  Votum.  »  Ib. 


in  Crimmal  Causes.  299 

compares  the  members  of  these  bodies  to  the  synodal  judges 
of  the  Council  of  Trent.'  Now  an  appeal  from  a  sentence 
which  is  judicial  and  definitive,  and  is  therefore  supposed  to 
have,  and  in  fact  has,  been  preceded  by  judicial  proceedings, 
— namely,  the  investigation  before  the  Commission, — is  cer- 
tainly a  judicial  appeal,  in  the  proper  sense  of  the  word. 
For  a  judicial  appeal  is  one  made  against  the  judicial  acts 
of  the  superior  ;  an  extrajudicial,  one  that  is  lodged  against 
his  extrajudicial  or  purely  administrative  acts."  We  think, 
therefore  (though  with  complete  deference  to  any  future 
decision  of  the  Holy  See),  that  the  appeals  in  question  are 
judicial,  and  should  be  governed  by  the  rules  applicable  to 
judicial  appeals. 

1238.  As  to  the  opposing  arguments  above  stated,  we 
answer  :  The  trial  before  the  Commission  is  not  a  canonical 
trial  in  the  technical  sense  of  the  word — that  is,  the  trial  is  not 
a  canonical  trial,  because  it  need  not  be  necessarily  conducted 
with  the  various  and  complex  formalities  prescribed  by  canon 
law.  But  in  every  other  respect  it  may  be  called  and  is  a 
canonical  trial  or  judicial  proceeding.  Moreover  it  should  be 
added,  that  even  though  it  were  true  that  the  appeals  in  ques- 
tion are  extrajudicial,  the  latter  are  placed  by  some  canonists 
on  the  same  footing  with  judicial  appeals,  so  far  as  the  ques- 
tion under  discussion  is  concerned. 

1239.  What  has  been  said  here  of  appeals  from  final  judi- 
cial sentences  of  our  bishops,  as  pronounced  after  trial  before 
the  Commission,  holds  also  of  interlocutory  sentences  of  the 
Commission  of  Investigation,  provided  they  have  the  force 
of  final  sentences,  or  inflict  an  injury  irremediable  by  a  final 
sentence,  or  by  an  appeal  from  a  final  sentencer  We  observe 
also  that  it  is  always  best  and  advisable,  with  us,  for  appel- 
lants to  specify  in  their  appeal  as  clearly  and  as  fully  as  pos- 
sible all  grievances  from  which  they  appeal. 

'  S.  C.  de  P.  F.,  Ad  Dubia,  §  ii.,  Electio.  «  Schmalzg.,  1.  2,  t.  28,  n.  4. 


300  Of  the  Ordinary  Canonical  Trial 

1240.  Let  us  now  turn  to  the  final  stage  of  the  appeal. 
The  Commission,  after  a  full  and  fair  trial  or  hearing' of  the 
appeal,  will  proceed  to  deliberate  and  make  up  their  opinion 
or  verdict  on  the  merits  of  the  cause  appealed,  as  provided 
in  the  Instruction  of  July  20,  1878,  §  9.  These  opinions, 
together  with  the  minutes  of  the  proceedings,  and  all  the 
papers  and  documents  submitted  by  the  appellant  and 
appellee,  are  then  gathered  together  and  properly  arranged 
or  filed  by  the  archbishop's  official,  and  delivered  to  the 
metropolitan,  whose  exclusive  right  and  duty  it  is  to  pro- 
nounce the  final  sentence  on  the  merits  of  the  appeal,  either 
confirming  or  modifying  or  annulling  the  sentence  of  the 
bishop  against  whom  the  appeal  was  lodged. 

§  2.  Eff'ccts  of  Appeals,  also  in  the  Uttited  States. 

1 241.  What  are  the  effects  of  appeals  ?  We  have  already 
substantially  answered  this  question,  in  the  first  volume  of 
our  Elements,  pp.  193-199,  and  pp.  426,  427.  Here  we  shall 
merely  summarize  and  further  explain  what  we  have  there 
said  on  the  matter. 

1242.  An  appeal  from  a  definitive  judicial  sentence  (the 
same  holds  of  an  appeal  from  an  interlocutory  sentence  hav- 
ing the  force  of  a  final  sentence,  or  inflicting  an  injury  irrep- 
arable by  a  final  sentence)  has  two  celebrated  effects  :  one 
devolutive  {effectus  devolutivus),  the  other  suspensive  {cffcctus 
suspe7tsivus).  By  means  of  the  devolutive  effect,  the  entire 
cause  that  has  been  appealed,  together  with  all  its  accessories 
or  accompaniments,  devolves  from  the  inferior  judge  to  the 
superior  to  whom  the  case  has  been  appealed,  and  the  latter 
acquires,  ipso  facto,  the  right  and  power  to  try,  or  hear  and 
take  cognizance  of,  as  also  to  decide  or  pass  final  sentence 
on,  the  cause.' 

1243.  The  suspensive  effect  consists  in  this,  that  the  juris- 

'  Cap.  55,  de  App.  (ii.  28);  cap.  59,  de  App.  (ii.  28). 


in  Criminal  Catises.  301 

diction  of  the  judge  a  quo  is  suspended,  so  that,  pending  the 
appeal,  he  cannot  execute  his  sentence,  but  is  bound  to  leave 
everything  in  staUi  quo — that  is,  in  the  same  state  in  which  it 
was  at  the  time  the  appeal  was  interposed/  To  these  two 
effects  may  be  added  a  third — namely,  the  remedy  of  atten- 
tates {remediiun  attentatorimi),  by  which  not  only  those  acts 
of  the  judge  a  quo  are  to  be  revoked  which  have  been  done 
pending  the  appeal,  or  after  the  appeal  has  been  interposed, 
but  also  those  which  took  place  before  the  appeal  was  made 
— namely,  those  which  were  attempted  during  the  ten  days 
allowed  for  appealing/ 

1244.  We  said  above,'  an  appeal  from  a  definitive  judicial 
sentence.  It  may  therefore  properly  be  asked,  whether  an 
extrajudicial  appeal,  or  an  appeal  from  an  extrajudicial  sen- 
tence or  act,  also  has  the  above  effects  ?  It  has,  though  in 
a  slightly  modified  manner."  In  other  words,  extrajudicial 
appeals,  like  judicial,  have  the  suspensive  and  devolutive 
effects,  as  also  the  effect  called  remedy  of  attentates,  all  of 
which  have  been  described/  Thus,  speaking  of  the  remedy 
of  attentates,  if  a  rector  or  parish  priest  or  other  ecclesiasti- 
cal official,  who  has  reason  to  fear  that  he  may  be  extrajudi- 
cially deprived  of  his  income  or  place,  appeals  against  this 
proposed  dismissal,  but  is  nevertheless  deprived  afterwards 
of  his  position,  he  should  before  all  else  be  reinstated/ 

1245.  The  reason  is,  that  the  law  of  the  Church  forbids 
all  changes  or  innovations,  and  that  on  pain  of  nullity  ipso 
jure,  not  only  pending  a  formal  appeal  {pendente  appellatione), 
but  in  general  pending  a  controversy  or  litigation  (pendente 
lite)  before  the  ecclesiastical  judge/     Now,  an  extrajudicial 

'  Cap.  39,  de  App.  (ii.  28);  Schmalzg.,  I.  2,  t.  28,  n.  108. 

*  Cap.  Non  solum  7,  de  Appell.  (ii.  15),  in  6°;  ib.  Glossa,  in  cas. 
'  Supra,  n.  1242. 

*  Cap.  51,  de  App.  (ii.  28);  ib.  Glossa,  v.  In  eumstatum;  cap.   10,  de  Elect, 
(i.  6);  cap.  63,  de  App.  (ii.  2S).  s  Miinchen,  1.  c,  p.  591,  n.  3. 

«  Cap.  51,  de  App.  (ii.  28).  '  Cap.  i  et  2,  Ut  lite  pend.,  in  6°  (ii.  8). 


302  Of  the  Ordinary  Canonical  Trial 

appeal,  being   at   least   a  provocatio  ad  cansam,  induces  or 
causes  a  litis  pendentia  or  pendency  of  the  litigation.' 

1246.  We  said  above  (n.  1244),  though  in  a  slightly  modi- 
fied manner ;  for  there  are  a  few  accidental  differences  as  to 
the  manner  in  which  these  effects  follow.  First,  as  to  the 
suspensive  effect,  a  judicial  appeal  suspends  the  jurisdiction 
of  the  judge  a  quo  in  regard  to  the  whole  case  and  all  its 
accessories,  even  though  only  one  or  two  points  have  been 
appealed  ;  while  extrajudicial  appeals  (at  least  when  they 
are  not  against  acts  which  are  altogether  extrajudicial  and 
final)  suspend  the  jurisdiction  of  the  judge  a  quo  only  as 
to  the  particular  matter,  point,  or  grievance  which  was 
expressly  stated  in  the  appeal,  but  not  to  other  complaints 
or  matters  of  dispute.  Hence,  also,  in  judicial  appeals  all 
attentates  or  innovations  whatever — i.e.,  acts  of  the  judge 
prejudicial  in  any  way  to  the  appellant — are  to  be  revoked, 
even  though  they  do  not  directly  concern  the  cause  ap- 
pealed. But  in  the  above  extrajudicial  appeals  only  those 
attentates  can  be  revoked  which  are  directly  prejudicial  to 
the  appellant,  so  far  as  the  grievances  appealed  are  con 
cerned.^ 

1247.  Secondly,  as  to  the  devolutive  effect,  in  judicial 
appeals  from  final  sentences  (the  same  holds  of  appeals  from 
interlocutory  sentences  having  the  force  of  final  sentences, 
and,  according  to  many,  also  of  appeals  from  acts  or  deci- 
sions altogether  extrajudicial  and  final)  the  whole  case  de- 
volves upon  the  judge  ad  quein  at  once — that  is,  before  the 
appellant  proves  that  his  appeal  is  just,  or  based  upon  good 
and  sufficient  reasons  or  grievances.  The  latter  must  sim- 
ply prove  that  he  has  appealed  with  the  requisite  formalities 
— namely,  within  the  ten  days,  etc.  While  in  extrajudicial 
appeals,  as  explained,  the  cause  itself  devolves  upon  the 
judge  ad  guem,  only  after  the  reasons  for  the  appeal  have 

'.  Schmalzg.,  1.  c,  n.  124.  *  Schmalzg.,  1.  2,  t.  28,  n.  125. 


in  Criminal  Causes.  303 

been  proved   to   exist   and    to   be  sufficient,  by  the  appel- 
lant' 

1248.  Hence,  also,  in  judicial  appeals  the  attentates  are 
to  be  reversed  by  the  judge  ad  qucm  before  all  else.  The 
appellant  is  merel}^  bound  to  prove  to  him  {a)  that  a  defini- 
tive sentence  was  passed;  {b)  that  he  appealed  from  it; 
{c)  that  attentates  took  place.''  On  the  other  hand,  in  the 
extrajudicial  appeals  in  the  case  the  attentates  can  be  re- 
voked by  the  judge  of  appeal  only  after  he  has  decided  that 
the  appeal  is  reasonable,  or  after  he  has  commanded  the 
judge  a  quo  to  do  nothing  further  in  the  case.' 

1249.  From  this  it  is  apparent  that  any  innovation  or 
change  whatever,  in  regard  to  the  status  of  the  appellant, 
which  is  prejudicial  to  him  is  strictly  forbidden  by  the  law 
of  the  Church,  and  that  in  extrajudicial  no  less  than  judicial 
appeals.  For  the  sacred  canons  expressly  declare,  that  pend- 
ing an  appeal  from  an  extrajudicial  act  or  sentence  {^pejidente 
lite),  no  less  than  pending  an  appeal  proper, — i.e.,  from  a 
definitive  sentence  {pendente  appellatione), — no  change  or 
innovation  in  the  status  of  the  appellant  shall  take  place." 
In  this  respect  there  is  no  difference  between  a  judicial  and 
an  extrajudicial  appeal.  The  difference  consists  simply  in 
the  manner  in  which  attentates  are  revoked. 

1250.  We  observe  again,  that  extrajudicial  appeals  have 
the  above  effects  as  a  general  rule.  For  there  are  especially 
now,  after  the  Council  of  Trent,  a  number  of  exceptions,  as 
will  be  seen  under  Nos.  445,  446,  447,  448,  where  we  show  in 
what  cases  these  appeals  have  at  present  only  a  devolutive, 
not  a  suspensive,  effect.^  Finally  we  remark,  that  what  \yc 
have   said   concerning   the   effects  of  extrajudicial   appeals 

'  Cap.  Non  solum  7,  de  App.,  in  6  (ii.  15);  Reiff.,  1.  c,  n.  260  sq. 
2  Reiff.,  1.  c,  n.  260.  s  j^^  „    263, 

*  L.  Unic.  ff.  Nihil  innovari  appell.  interposita.  (xlix.  7). 
^  Cf.  Giraldi,  Expos.  Jur.  Pont,  in  1.  2,  deer.  sect.  308,  p.  210  sq.     Romae, 
1829. 


304  Of  the  Ordinary  Canonical  Trial 

must  be  construed  in  the  light  of  the  remarks ,  laid  down 
under  Nos.  1225,  1226,  1227. 

125 1.  Application  of  the  above  principles  to  the  Ufiited 
States. — As  we  have  seen,'  the  final  sentences  of  our  bishops, 
which  must  be  preceded  by  and  based  upon  a  trial  or  hear- 
ing of  the  case  before  the  Commission  of  Investigation,  are 
judicial  appeals  proper,  and  therefore  have  the  same  sus- 
pensive and  devolutive  effects  with  the  latter.  This  holds 
also  concerning  the  reversing  of  attentates.  Hence,  if,  for 
instance,  a  missionary  rector,  with  us,  who  has  been  tried 
before  a  Commission  of  Investigation,  and  sentenced  by  the 
bishop  to  dismissal  from  his  parish,  appeals  from  such  deci- 
sion, the  bishop  cannot,  pending  such  appeal,  proceed  to 
enforce  his  sentence,  but  should  leave  all  things  in  statu  quo. 
And  if  the  bishop,  notwithstanding  the  appeal,  proceeds  to 
execute  his  sentence,  the  superior  or  metropolitan  to  whom 
the  case  has  been  appealed  should,  before  all  else, — that  is, 
before  entering  into  the  reasonableness  of  the  appeal,  or  the 
merits  of  the  cause  appealed, — revoke  the  dismissal  and  rein- 
state the  rector,  and  only  then  can  he  proceed  to  try  the 
appeal.  The  reason  is  apparent  from  the  principles  govern- 
ing attentates.  Besides,  a  rector  thus  dismissed  is  consid- 
ered by  the  law  of  the  Church  as  spoliatus,  or  robbed  of  his 
parish,  and  should,  therefore,  before  all  else,  be  reinstated." 

'  Supra,  n.  1237.  '  Cap.  51,  de  App.  (ii.  28). 


CHAPTER  IV. 

OF    EXTRAORDINARY    CRIMINAL    TRIALS    IN   ECCLESIASTICAL 
COURTS,  ALSO    IN   THE    UNITED   STATES. 

( De  Processu  Criminali  Extraordinario.) 

1252.  By  an  extraordinary  criminal  trial  or  process  we 
mean  one  where,  by  the  disposition  of  canon  law,  it  is  not 
necessary  to  observe  all  the  formalities  of  formal  trials,  as 
set  forth  in  the  preceding  chapter.  There  are  four  kinds  of 
extraordinary  criminal  trials  approved  by  the  sacred  canons 
for  ecclesiastical  courts,  namely,  {a)  The  criminal  trial  for 
notorious  crimes ;  {b)  summary  trials  ;  {c)  sentences  ex  infor- 
mata  conscientia  ;  {d)  trial  for  heresy.  We  shall  now  briefly 
describe  each  of  these  kinds  of  trials. 

Art.  I. 

The  Criminal  Trial  for  Notorious  Crimes  {Processus  Criminalis 

ex  Notorio). 

1253.  A  crime  maybe  notorious  in  tAvo  ways:  by  fact 
and  by  law  (we  speak,  of  course,  of  the  canon  law).  A 
crime  is  notorious  by  law  {notorietas  juris)  when  its  notoriety 
arises  from  judicial  proceedings.  Thus  it  becomes  notorious 
bylaw  in  these  three  ways:  i.  By  a  judicial  confession  of 
guilt  made  by  the  accused  spontaneously,  and  not  through 
fear  or  force,  nor  revoked  by  him.'  2.  By  full  and  complete 
judicial  proofs  of  guilt,  provided  that  no  proofs  to  the  con- 
trary are  offered  in  evidence,  and  the  case  is  closed.*     3.  By 

'  Cap.  Vestra  7,  de  Cohabit,  cler.  et  mul.  (iii.2);  ib.,  cap.  10. 
*  Cap.  Cum  olim  24,  de  V.  S.  (v.  40). 


3o6  Of  Extraordinary  Criminal  Trials 

a  condemnatory  sentence,  or  a  sentence  declaratory  of  the 
crime,  against  which  no  appeal  has  been  lodged,  and  which 
therefore  has  become  res  Judicata.' 

1254.  A  crime  is  notorious  by  fact  inotorietas  facti)  not 
when  it  is  simply  public,  or  known  to  two  or  three  or  even 
five  persons,  but  when  it  has  been  committed  in  the  presence 
of  the  entire  community,  parish,  college,  town,  village,  etc., 
or  at  least  the  greater  part  or  majority  of  such  community, 
parish,  etc.,  so  that  it  cannot,  in  any  way  whatever,  be  con- 
cealed or  denied.^ 

1255.  We  say,  tiot  when  it  is  simply  public,  etc.;  to  under- 
stand this  more  fully,  we  ghall  briefly  explain  when  a  crime 
is  occult,  when  public,  and  when  notorious.  A  crime  or  act 
is  occult,  in  the  strict  or  proper  sense  of  the  word,  when  it 
cannot  at  all  be  established  by  legitimate  proofs.  Of  crimes 
of  this  kind,  the  Church  cannot  take  any  cognizance  what- 
ever. To  God  alone  belongs  the  right  and  power  to  punish 
them."  On  the  other  hand,  a  crime  is  occult  only  in  a  large 
sense,  namely,  when  it  can  be  proved  indeed,  but  only  by 
the  testimony  of  a  few  persons — v.g.,  when  it  is  known  to 
two,  three,  or  even  five  persons.*  For  even  though  a  fact  or 
crime  is  known  to  five  persons,  it  is  still  occult,  provided  it 
is  not  made  more  public  by  being  brought  into  court  and 
discussed  there.  Crimes  which  are  thus  occult  may  also 
be,  in  fact  are,  called  public,  as  we  shall  presently  see.* 

1256.  When  a  crime  is  public. — A  crime  or  act  may  be  pub- 
lic in  three  ways  :  First,  when  it  is  only  quasi-occult,  as  just 
described.  This  is  the  first  degree  of  publicity.  Secondly, 
when  it  can  not  onl}'  be  proved,  but  is  also  known  to  many 
persons,  so  that  there  is  fame  or  common  report  in  regard 
to  it.  This  is  the  second  degree  of  publicity.  Thirdly, 
when  it  is  known  in  such  a  manner  or  so  publicly  that  it  can- 

'  Reiff.,  1.  5,  t.  I,  n.  246;  Schmalzg.,  1.  5,  t.  i,  n.  i.     '  Schmalzg.,  1.  c,  n.  2. 
^  Can.  II,  Dist.  32.  *  Can.  87,  de  Poenit.,  Dist.  i,  §  Haec  ergo. 

'  Reiff.,  1.  5,  t.  I,  n.  243. 


in  Ecclesiastical  Courts,  also  in  the  U.  S,        307 

not,  by  any  tergiversation  or  subterfuge  whatever,  be  con- 
ceated  or  denied.  This  is  the  third  and  highest  degree  of 
publicity,  and  is  called  notoriety. 

1257.  Now,  before  how  many  persons  must  a  crime  be 
committed  in  order  that  it  may  be  notorious  ?  All  canonists 
agree  that  it  must  be  known  to  and  committed  in  the  pres- 
ence of  at  least  six  persons.  For  all  canonists  agree  that  a 
crime  is  notorious  only  when  it  has  been  committed  before 
the  greater  number  of  the  people  composing  a  community. 
Now  the  smallest  community  must  have  ten  persons.  A 
community  having  a  less  number  is  no  community  at  all.' 
Therefore  six  persons  constitute  a  majority  of  the  smallest 
possible  community.  Hence  no  crime  is  notorious  unless 
committed  before  at  least  six  persons. 

1258.  But  it  is  evident  that  a  larger  number  is  required 
when  the  community,  town,  or  city  has  more  than  ten  per- 
sons,  and  where  consequently  six  would  not  form  a  majority. 
Yet  it  is  also  plain  that  where  a  place — town,  village,  city,  or 
community — is  large  and  populous,  containing  several  thou- 
sands of  people,  it  is  not  necessary  that  the  crime  should  be 
committed  before  the  majority  of  all  the  inhabitants  of  such 
place.  What  number,  then,  is  required?  Authors  differ. 
The  judge  seems  the  proper  person  to  determine  what  num- 
ber is  sufficient  in  the  case,  considering  all  the  circumstances. 
However,  it  is  to  be  observed  that  in  the  case,  namely, 
where  the  crime  is  committed  in  a  large  city,  it  is  not  neces- 
sary that  it  should  be  committed  before  the  majority  of  the 
whole  city,  but  it  is  sufficient  if  it  has  been  perpetrated  in  the 
presence  of  the  majority  of  the  people  of  the  immediate 
neighborhood,  parish,  or  college  where  it  is  notoHous.* 

1259.  Mode  of  procedure  where  an  offence  is  notorious. — 
Where  a  crime  is  notorious,  whether  by  law  or  by  fact,  the 
judge  (we  speak  always  of  the  ecclesiastical  judge)  is  not 

'  Ex  can.  Unio  3,  C.  10,  Q.  3.  ^  Reiff,,  1.  c,  n.  251. 


3o8  Of  Extraordinary  CrimmaC  Trials 

bound  to  observe  the  ordinary  formalities  of  ecclesiastical 
criminal  trials — i.e.,  the  ordo  judiciariiis.  Thus  the  Can.  Pro- 
hibentur  \\,  C.  2,  Q.  i,  says:  "Quae  manifesta"  (notoria) 
"sunt,  judiciarium  ordinem  non  requirunt.'"  The  reason  is 
that  the  observance  of  the  judicial  forms  has  for  its  object 
the  ascertaining  of  the  truth,  where  there  is  a  doubt  about 
the  guilt  of  the  alleged  offender.  Now,  this  object  certainly 
ceases  to  exist  where  the  crime  is  notorious.^ 

1260.  Consequently,  when  the  crime  is  notorious,  the  judge 
can  pass  sentence  and  inflict  the  proper  penalty  without  any 
previous  trial  whatever,  so  far  as  concerns  the  crime  itself. 
Hence  it  is  not  necessary  to  cite  the  accused  for  trial,  to 
examine  witnesses,  etc.  We  say,  so  far  as  concerns  the  crime 
itself ;  since  the  case  is  different  with  the  notoriety  of  the 
crime.  For  while  in  notorious  cases  the  crime  itself  need  not 
be  proved,' — notoriety  being  the  best  proof, — yet  its  notoriety 
must  be  fully,  clearly,  and  juridically  established,* — namely, 
by  the  depositions  of  witnesses."  In  other  words,  at  least  two 
unexceptionable  witnesses  must  testify,  not  only  that  they 
were  personally  witnesses  of  the  crime, — i.e.,  saw  or  heard  it 
committed  by  their  own  senses, — but  also  that  they  saw  it 
committed  in  the  presence  of  the  whole  community,  or  at 
least  the  greater  part  of  such  community.' 

1 261.  Moreover,  before  pronouncing  the  final  sentence 
the  judge  should  pronounce  a  declaratory  sentence — namely, 
declaring  that  the  crime  is  in  reality  notorious.  This  latter 
sentence  may,  however,  be  contained  in  the  sentence  of 
condemnation,  which  may  therefore  read  thus :  Whereas  X. 
has  been  found  notoriously  guilty  of  the  crime  of  drunken- 
ness, we  hereby  condemn  him  to  suspension  for  three 
months.^ 

'  Cf.  can.  15,  16,  17,  C.  2,  Q.  i;  cf.  cap.  21,  de  Jurej.  (ii.  24). 

*  Schmalzg.,  I.  5,  t.  i,  n.  7.  *  Stremler,  1.  c,  p.  81. 

*  Cap.  15,  de  Purg.  can.  (v.  34).  *  Schmalzg.,  1.  c,  n.  16. 

*  Reiff.,  1.  c,  n.  264.  ''  Cf.  Reiff.,  1.  c,  n.  264. 


in  Ecclesiastical  Courts,  also  in  the  U,  S.        309 

1262.  Moreover,  in  order  that  the  judge  may  have  power 
to  proceed  without  trial,  the  crime  must  be  notorious,  not 
only  materially,  but  also  formally — that  is,  it  must  be  noto- 
rious not  only  that  the  crime  was  committed  by  the  accused, 
but  also  that  it  was  committed  with  malice,  and  that  in  such 
manner  that  in  both  these  respects  there  can  be  no  possible 
excuse  or  defence.'  Whenever  there  is  a  doubt  on  any  of 
these  points,  the  judge  must  give  the  accused  the  benefit  of 
the  usual  trial,  and  observe  the  prescribed  judicial  formalities. 

1263.  Accordingly,  it  is  the  advice  of  all  canonists,  that, 
even  where  the  crime  is  notorious,  both  materially  and 
formally,  the  judge  will  act  wisely  and  prudently  if  he 
observes  the  usual  formalities  of  judicial  proceedings  or 
trials — that  is,  if  he  gives  the  accused  the  benefit  of  the  cus- 
tomary trial,  just  as  in  cases  which  are  not  notorious.* 
Hence  the  judge  will  do  well  to  cite  the  accused  for  trial, 
hear  his  defences,  etc.^  For,  as  the  sacred  canons  say  : 
"  Multa  dicuntur  notoria,  quae  non  sunt."  *  It  is,  no  doubt, 
owing  to  this  that  the  law  of  the  Church,  as  above  explained, 
dispensing  with  trials  in  notorious  cases,  has  now  fallen  into 
general  desuetude,  and  that  at  present  it  is  the  universal 
practice  of  all  ecclesiastical  tribunals  to  observe  the  custom- 
ary forms  of  trials  in  all  notorious  cases,  even  where  the 
notoriety  is  clearly  established.  From  this  general  custom, 
says  Stremler,"  it  were  temerity  to  depart. 

1264.  Application  of  the  above  principles  to  the  United 
States. — What  has  been  said  above  in  regard  to  the  mode  of 
procedure  in  notorious  cases,  applies,  of  course,  also  in  this 
country.  Hence  the  bishop  with  us,  where  the  crime  is 
notorious,  may  per  se  inflict  suspension  and  even  dismissal 
from  parish  without   any  trial   before   the    Commission   of 

'  Cap.  fin.,  de  Off.  jud.  del.,  in  6°;  Stremler,  1.  c,  p.  82;  Miinchen,  1.  c,  vol. 
i.,  p.  447,  n.  3. 

*  Cf.  Reiff.,  1.  c,  n.  265;  Schmalzg.,  1.  c,  n.  16.         ^  Stremler,  1.  c,  p.  82. 

*  Cap.  14,  de  App.  (ii.  28).  *  L.  c,  p.  82. 


3IO  Of  Extraordinary  Criminal  Trials 

Investigation.  We  say,/^r  se ;  for,  as  we  have  seen,  it  is  at 
present,  at  least  practically  speaking,  always  necessary,  in 
view  of  the  universal  custom  to  that  effect,  to  give  an 
accused  who  is  notoriously  guilty  the  benefit  of  the  usual 
trial. 

Art.  II. 

Of  Summary   Trials  in  Ecclesiastical  Courts  {^Judicium  Sum- 

mariu7n). 

1265.  In  canon  law,  a  summary  trial  {Judicium  summarium) 
is  one  in  which  the  proceedings  are  conducted  simpliciter  et 
de  piano  ac  sine  strepitu  et  figura  judicii.  To  try  summarily, 
therefore,  is  the  same  as  to  proceed  sijnpliciter  ?ind  sine  figura 
judicii.  But  to  proceed  sine  figura  judicii  is  not  to  omit  all 
the  formalities  of  ordinary  or  formal  trials,  but  only  some  of 
them,  namely,  certain  accidental  ones,  which  are  expressly 
mentioned  in  law — that  is,  in  the  Clem.  Saepe  2,  de  V.  S.  (v.  1 1). 

1266.  A  summary  canonical  trial  may  therefore  be  defined 
that  trial  where,  for  the  more  speedy  termination  of  causes 
or  trials,  certain  formalities  specified  in  canon  law,  of  ordi- 
nary or  formal  trials,  may  be  and  in  fact  are  omitted.'  We 
say,  for  the  more  speedy  tcrminatio7t,  etc.;  because  the  object 
of  summary  trials  is  not  to  do  away  with  the  essential  for- 
malities of  ordinary  trials,  but  merely  to  cut  short  those 
accidental  formalities  of  formal  trials  which  lead  to  numer- 
ous delays  not  only  useless,  but  injurious.  In  a  word,  the 
object  of  summary  trials  is  simply  to  make  the  trial  shorter 
and  less  complicated,  but  not  to  abolish  it.  It  may,  there- 
fore, be  termed  a  simpler  form  of  the  ordinary  trial. 

1267.  Hence,  also,  it  would  be  a  mistake  to  suppose  that 
in  summary  trials  the  proceedings  may  be  less  thorough, 
less  complete,  or  less  exhaustive  than  in  solemn  or  formal 
trials.  Much  less  should  it  be  imagined  that  in  such  trials 
the  proofs  can  be  less  perfect  or  less  full  than  in  formal 

'  Bouix,  de  Jud.,  vol.  ii.,  p.  306. 


in  Ecclesiastical  Courts,  also  in  the  U.  S.        311 

trials.  No  diflference  whatever  exists  in  this  respect  be- 
tween summary  and  formal  trials.'  Hence  it  may  be  said 
that  in  summary  trials  only  those  accidental  formalities  are 
omitted  which  unnecessarily  lengthen  the  trial  and  cause 
useless  delays." 

1268.  This  shows  also  how  summary  trials  differ  from 
trials  in  notorious  causes,  as  explained  in  the  preceding 
article.  For  in  trials  ex  notorio  all  the  formalities  of  solemn 
or  ordinary  trials  may  be  dispensed  with,  save  those  which 
regard  the  establishment  of  the  notoriety  and  the  citation 
for  the  final  sentence.^  We  see  also  how  summary  trials 
differ  from  sentences  ex  informata  conscientia ;  for  in  the 
latter  not  only  some,  but  all  formalities  whatever,  of  formal 
or  ordinary  canonical  trials,  may  be  omitted,  and  they  may 
be  wholly  extrajudicial — that  is,  they  may  be  pronounced 
without  any  previous  trial  or  judicial  formality  whatever. 

1269.  What  then  are  the  formalities  of  ordinary  or  solemn 
trials  that  may  be  omitted  in  summary  trials  ?  It  is  allowed 
to  recede  from  these  formalities  only  in  the  following  parti- 
culars, which  are  expressly  enumerated  in  the  Clem.  Saepe  2, 
de  V.  S.  (v.  11) :  i.  No  written  charge  or  bill  of  complaint 
{libellus)  is  necessary ;  and  the  complaint  may  be  made 
orally,  provided  it  be  recorded  on  the  minutes.*  2.  Nor  is 
any  formal  arriving  at  issue,  or  litis  contestatio,  required. 
Hence  the  judge,  having  duly  cited  the  defendant,  may  forth- 
with on  the  day  appointed  in  the  citation  proceed  to  the 
taking  of  testimony  in  the  case.^  3.  The  proceedings  may 
take  place,  not  indeed  on  festivals  of  precept  of  the  Church, 
or  on  Sundays,  but  yet  on  holidays  established  for  the  bene- 
fit of  the  people.  Such  were  formerly  the  harvest  and  vin- 
tage seasons  in  summer  and  fall ;  *  such  are  at  present,  with 

'  Miinchen,  1.  c,  vol.  i.,  p.  336,  n.  2. 

'  Schmalzg.,  1.  2,  t.  i,  n.  10.  ^  Cf.  Schmalzg.,  1.  5,  t.  I,  n.  10. 

^  Clem.  Saepe  cit.,  §  Verum  quia;  ib.  Glossa,  v.  Necessario.  *  lb. 

*  lb. ;  cf.  ib.  Glossa,  v.  Ob  necessitates. 


312  Of  Extraordinary  Criminal  Trials 

us,  certain  legal  holidays,  as  election  day,  thanksgiving  day, 
etc.  4.  No  peremptory  citation  to  hear  the  final  sentence 
need  issue  to  the  parties,  a  simple  citation  being  sufficient. 
5.  The  so-called  conclusio  in  causa  need  not  take  place,  and 
the  final  speeches  or  summing  up  by  the  parties  or  their 
advocates  should  be  as  short  and  concise  as  possible.  6. 
The  judge  in  pronouncing  final  sentence  need  not  be  seated 
or  sit  solemnly  in  court,  but  may  assume  any  proper  posture 
he  pleases — that  is,  he  may  either  stand,  walk  up  and  down, 
etc' 

1270.  Nothing,  however,  can  be  omitted  in  summary 
trials  that  is  essential  to  judicial  proceedings.  Hence  the 
following  formalities  of  formal  or  ordinary  canonical  trials 
must  be  retained,  as  is  expressly  enacted  in  the  Clem.  Saepe  2, 
above  quoted  :  i.  The  proofs  submitted  by  the  plaintiff  or 
prosecution  in  support  of  his  case  must  be  as  full  and  com- 
plete as  in  formal  canonical  trials.  2.  The  right  of  defence 
remains  unimpaired,  and  consequently  the  defendant  should 
be  given  as  full  and  free  a  power  of  defending  himself  as  is 
allowed  in  formal  trials.  3.  The  parties  must  be  cited  for 
trial.  4.  The  so-called  articles  anS  positions  or  specifications 
are  retained  as  in  ordinary  trials.  5.  Whatever  petitions  or 
proposals  are  made  by  the  parties  should  be  submitted  by 
them,  at  least  as  far  as  possible,  in  the  beginning  of  the  trial, 
and  should  be  at  once  spread  on  the  minutes  by  the  notary 
or  secretary.     6.  The  witnesses  must  testify  under  oath. 

1 27 1.  7.  As  to  exceptions  and  appeals,  the  same  holds  in 
summary  as  in  ordinary  or  formal  trials.  For,  although 
Pope  Clement  V.,  in  his  celebrated  decretal  Saepe,  above 
quoted,  which  determines  the  formahties  to  be  observed  in 
summary  trials,  says  that  in  these  latter  trials  the  judge 
should  cut  off  exceptions,  he  expressly  confines  this  to  "  ex- 
ceptiones  et  appellationes  dilatorias  et  frustratoriasr '    There 

*  Clem.  Saepe  cit.  »  Clem.  Saepe  2.  de  V.  S.  (v.  11). 


in  Ecclesiastical  Courts,  also  in  the  U.  S.        313 

he  forbids  only  such  exceptions  and  appeals  as  are  made 
maliciously  and  solely  for  the  purpose  of  delaying  and  pro- 
longing the  trial  and  evading  the  ends  of  justice,  as  the 
Glossa '  explains.  Legitimate  and  reasonable  exceptions  and 
appeals  are  therefore  allowed. 

1272.  Observe  that  in  the  cases  where  the  trial  may  be 
summary  the  formalities  prescribed  for  solemn  or  formal 
trials  may  nevertheless  be  observed  in  whole  or  in  part, 
provided  the  parties  or  litigants  consent.  This  is  expressly 
stated  in  the  above  decretal  Saepe. 

1273.  What  causes  chiefly  can  be  tried  in  a  summary  man- 
ner? I.  All  questions  relating  to  appointments  to  parishes, 
benefices,  and  ecclesiastical  offices  in  general — v.g.,  all  dis- 
putes concerning  appointments  ;  for  instance,  where  an  eccle- 
siastic contends  that  he  should  have  received  the  appointment 
which  he  claims  was  unjustly  given  to  another.^  2.  All  causes 
relating  to  elections  to  ecclesiastical  offices;  3,  or,  to  ecclesi- 
astical tithes  or  contributions  for  the  support  of  incumbents  of 
ecclesiastical  offices  and  benefices.  4.  All  matrimonial  causes. 
Observe  that  in  matrimonial  causes  of  nullity,  the  Const.  Dei 
Miserat.  of  Benedict  XIV.  must  also  be  observed.  5.  Finally, 
not  only  the  above  causes  themselves,  but  also  all  other 
questions  or  causes  which  in  any  way  touch  upon  them. 

1274.  These  causes  are  expressly  enumerated  in  the 
decretal  Clefn.  Dispendiosam  2,  de  Judic.  (ii.  i).  Canonists 
commonly  add  the  causes  of  persons  who  are  poor,  of 
orphans,  widows,  and  the  like ;  the  causes  of  alimony,  of 
spoliation ;  all  causes  of  little  importance ;  the  causes  of  re- 
ligious; those  causes  which  on  account  of  some  imminent 
danger  do  not  suffer  delay.  Besides,  the  Pope  can  order 
any  cause  whatever  to  be  tried  summarily.^ 

1275.  Can  criminal  causes  be  tried  in  a  summary  man- 

'  Clem.  Saepe,  v.  Dilatorias;  Molitor.  1.  c,  p.  194;  Stremler,  1.  c,  p.  162. 
'  Cf.  cap.  8,  in  6°  (ii.  15);  Miinchen,  1.  c,  vol,  i.,  p.  344;  ib.,  p.  590,  n.  2. 
'  Bouix,  de  Jud.,  vol.  ii.,  p.  310. 


314  Of  Extraordinary  Criminal  Trials 

ner?  Apart  from  a  special  mandate  of  the  Pope,  the  for- 
malities of  solemn  or  ordinary  trials  must  always  be  observed 
in  criminal  causes,  the  summary  trial  being  applicable  only 
to  civil  causes  of  minor  importance,  and  to  the  causes  speci- 
fied in  the  two  decretals  Clem.  Dispendiosam  and  Clem.  Saepe, 
above  quoted.' 

1276.  That  the  Holy  See  has  the  power  to  permit  crimi- 
nal causes  to  be  tried  summarily,  there  can  be  no  doubt.  In 
fact,  we  have  an  instance  of  the  exercise  of  this  power  in  our 
very  midst.  For  the  mode  of  trying  or  hearing  and  decid- 
ing criminal  -and  disciplinary  causes  of  ecclesiastics,  as  or- 
dained by  the  S.  C.  de  P.  F.,  on  July  20,  1878,  for  the  United 
States,  partakes  of  the  nature  of  a  canonical  summary  pro- 
cess or  trial.  We  say,  "  partakes  of  the  nature,"  not  "  is  a 
canonical  summary  trial."  For  this  mode  of  procedure  dif- 
fers in  several  particulars  from  canonical  summary  trials  as 
above  described.  Thus,  among  other  things,  the  formal  posi- 
tions or  articles  {positiones,  articuli)  retained  in  summary 
canonical  trials  are  omitted  in  our  trials ;  nor  do  witnesses, 
with  us,  depose  under  oath,  as  they  must  do  in  summary 
canonical  trials. 

1277.  Another  instance  is  the  recent  Instruction  of  the 
S.  C.  Ep.  et  Reg.,  dated  June  11,  1880,  which  lays  down  a 
new  mode  of  procedure,  or  of  conducting  trials,  in  disciplin- 
ary and  criminal  causes  of  ecclesiastics,  for  those  countries 
where  canon  law  obtains,  and  which  consequently  are  not 
subject  to  the  Propaganda.  The  object  of  this  Instruction 
is  to  enable  bishops  or  ecclesiastical  courts  m  countries  not 
missionar}^  and  therefore  not  subject  to  the  Propaganda,  to 
proceed  in  a  more  economical  or  simple  manner — that  is, 
to  dispense  with  certain  non-essential  formalities  of  formal 
or  solemn  canonical  trials — in  the  hearing  and  deciding  of 
disciplinary  and  criminal  causes  of  ecclesiastics,  whenever, 

'  Stremler,  1.  c,  p.  163;  Craiss.,  Man.,  n.  6009. 


in  Ecclesiastical  Courts,  also  in  the  U.  S, 


o^o 


owing  to 'the  condition  of  the  Church  at  the  present  day, 
especially  so  far  as  concerns  her  relations  with  the  secular 
power,  it  is  found  impossible  or  inexpedient  to  observe  all 
the  formalities  of  solemn  canonical  trials. 

1278.  We  have  just  said,  tvhenever,  owing  to  the  condition, 
etc. ;  for  this  Instruction  expressly  provides  that  wherever 
the  formalities  of  solemn  or  ordinary  trials  can  be  freely 
and  effectively  observed,  they  must  be  observed ;  that  only 
in  cases  where  it  is  either  impossible  or  inexpedient  can 
bishops  or  other  ecclesiastical  courts  proceed  in  the  simpler 
and  more  economic  manner  therein  laid  down.  Note  also 
that  bishops  are  simply  authorized,  but  not  obliged  to  pro- 
ceed in  this  simpler  form.  Finally,  it  is  to  be  observed  that 
the  trial,  as  prescribed  in  this  Instruction,  retains  substan- 
tially all  the  formalities  of  solemn  or  ordinary  canonical 
trials,  and  omits  only  certain  non-essential  forms  which  tend 
merely  to  prolong  and  delay  the  proceedings  without  any 
necessity,  and  substitutes  in  their  place  others  more  practical 
and  better  adapted  to  the  wants  of  our  time.  This  most 
important  Instruction,  together  with  an  excellent  Italian 
translation  of  it,  is  given  in  its  entirety  in  the  Acta  S.  Sedis, 
vol.  xiii.,  p.  324  sq.,  and  will  be  found  below. 

Art.  III. 

Sentences  "  ex  infonnata  conscientia,''  as  in  force  also  in  the 

United  States. 

1279.  Prior  to  the  Council  of  Trent  no  ecclesiastic  could 
be  punished  by  his  bishop, — v.g„  suspended  from  the  exer- 
cise of  orders  already  received,  or  forbidden  to  ascend  to 
higher  orders, — save  npon  a  regular  or  formal  criminal  trial,  as 
prescribed  by  the  sacred  canons.  Hence  no  occult  crime,  in 
the  proper  sense  of  the  word, — that  is,  no  crime  which  -was 
not  provable, — could  be,  properly  speaking,  punished,  no 


3i6  Of  Extraordinary  Crimmal  Trials 

matter  how  enormous  it  was  ;  for  the  simple  reason  that  the 
fact  of  its  being  occult  precluded  the  possibility  of  its  being 
proved  juridically,  or  by  such  juridical  proofs  as  are  required 
for  conviction  in  a  formal  canonical  trial. 

1280.  This  was  the  general  law  of  the  Church  prior  to 
the  Council  of  Trent,  and  admitted  of  no  exceptions  what- 
ever, save  in  the  case  of  murder,'  heresy,  and  regulars  who 
could  be  forbidden  by  their  religious  superiors  to  ascend 
to  higher  orders,  even  for  occult  crimes,  and  without  any 
trial.''  We  say,  regulars ;  for  the  law  of  the  Church  then  in 
force — namely,  the  cap.  Ad  Aures,  just  quoted — clearly 
shows,  and  the  common  opinion  of  canonists  (from  which 
only  a  few  dissent)  is,  that  the  exception  did  not  extend  to 
seculars,  but  was  binding  solely  on  regulars.' 

1 28 1.  That  the  law  in  question  was  the  general  law  of 
the  Church  before  the  Council  of  Trent  is  clearly  expressed 
in  the  decretal  Ex  Tefiore,"  made  by  Pope  Alexander  III.,  in 
the  year  11 70,  and  the  decretal  Quaesitum,  enacted  by  Pope 
Gregory  IX.,  in  1229,  and  is,  moreover,  admitted  by  all  can- 
onists. Thus  Stremler  says  :  "  Before  the  Council  of  Trent 
a  bishop  could  not  repel  any  unworthy  candidate  from  holy 
orders,  nor  punish  a  dehnquent  ecclesiastic,  save  upon  a 
formal  or  an  ordinary  criminal  trial,  as  established  by  the 
law  of  the  Church  and  contained  in  the  decretals.  .  .  .  No 
crime  could  be  punished,  except  when  the  delinquent  had 
been  juridically  convicted,  in  a  canonical  trial  conducted 
with  the  formalities  established  by  canon  law  for  proceed- 
ings in  criminal  causes."  ^ 

1282.  The  Council  of  Trent,  in  its  14th  session,  chapter 
i.,  de  Ref.,  introduced  in  this  respect  a  radical  and  complete 
change  in  the  discipline  of  the  Church  as  it  had  existed 
down  to  that  time.     For  it  enacted  in  that  session,  that  in 

'  Cap.  17  (i.  11).  '  Cap.  Ad  aures  5  (i.  11). 

^  Bouix,  de  Jud.,  vol.  ii.,  p.  317.  *  Cap.  4,  de  Temp.  ord.  (i.  11). 

*  Stremler,  Des  Peines  Eccl.,  p.  310. 


in  Ecclesiastical  Cotirts,  also  171  the  U.  S.        317 

certain  cases  bishops  could  inflict  punishment  upon  their 
dehnquent  ecclesiastics  without  any  previous  trial  whatever, 
or  judicial  formahties,  not  even  those  prescribed  for  sum- 
mary trials.  That  this  power,  totally  unknown,  nay,  unheard 
of,  before  the  Council  of  Trent,  is  a  very  great,  hay,  an 
extraordinary,  power,  is  admitted  by  all  canonists.  For,  as 
we  have  seen,  the  right  of  self-defence  is  guaranteed  to 
every  accused  by  the  very  law  of  nature,  and  therefore 
cannot  be  taken  away  even  by  the  Church  or  its  head,  the 
Supreme  Pontiff. 

1283.  Now  bishops,  in  virtue  of  the  above  Tridentine  law, 
can  in  certain  cases  condemn  an  accused  ecclesiastic  without 
giving  him  any  opportunity  of  defending  himself.  But  it 
must  be  borne  in  mind  that  this  power  was  given  bishops 
only  for  exceptional  and  extraordinary  cases,  where  the  com- 
mon good  of  the  faithful  required  its  exercise.  Moreover, 
the  right  of  self-defence  is  not  taken  away  altogether  by  the 
above  power.  For  the  ecclesiastic  who  may  happen  to  be 
punished  ex  informata  cojiscientia,  or  without  trial,  can  have 
recourse  to  the  Holy  See,  where  he  will  have  the  right  to 
defend  himself.  Besides,  as  we  shall  see,  this  extraordinary 
power  of  bishops  is  hedged  in  on  all  sides  by  so  many  re- 
strictions and  safeguards,  that  the  danger  of  its  being  abused 
is,  comparatively  speaking,  remote.  Finally,  its  abuse,  if  any 
exists,  will  bring  its  own  correction  with  itself.  For  the 
Holy  See  has  of  late  shown  its  unmistakable  intention  of  not 
allowing  the  power  to  proceed  ex  informata  conscientia  to  be 
extended  beyond  certain  restricted  limits. 

1284.  Bouix  notes  that  the  question,  whether  at  present, 
considering  the  abuses  that- may  have  occurred  in  the  exer- 
cise of  this  power,  or  the  condition  of  our  times,  which  frowns 
down  upon  anything  which  has  even  the  appearance  of  re- 
stricting the  rights  of  defendants,  it  were  proper  to  do  away 
altogether  with  the  power  to  proceed  ex  inf.  consc.,  may 
lawfully  be  disputed  by  any  Catholic,  provided  he  does  so 


3l8  Of  Extraordinary  Criminal  Trials 

with  due  submission  for  the  authority  of  the  Holy  See.' 
That  our  times  are  no  longer  the  same  as  those  when  the 
Council  of  Trent  enacted  the  decree  in  question,  seems  be- 
yond doubt.  The  moral  depravity  among  no  small  number 
of  the  clergy  in  the  days  of  the  Council  of  Trent  certainly 
warranted  such  an  extreme  remedy  as  the  power  conferred 
on  bishops  in  its  14th  session,  chapter  i.,  de  Ref.  At  the 
present  day  this  reason  cannot  be  said  to  exist  any  longer. 
Moreover,  the  unfavorable  impression  which  is  created 
among  non-Catholics,  even  by  the  appearance  of  an  arbitrary 
procedure  on  the  part  of  ecclesiastical  prelates,  would  cer- 
tainly make  it  advisable,  especially  in  non-Catholic  countries, 
for  superiors  to  make  use  of  this  power  only  rarely. 

1285.  However,  as  a  vindication  of  this  power,  we  may 
be  permitted  to  say  that  even  civil  governments  have  re- 
course at  times,  when  an  extraordinary  condition  of  affairs 
requires  it,  to  a  similar  power — namely,  to  the  suspension 
of  the  habeas  corpus  act. 

1 286.  Nature  and  extent  of  the  power  of  bishops  to  proceed 
*'  ex  informata  conscientiar — How  far  does  the  power  given 
bishops  by  the  Council  of  Trent  to  proceed  against  delin- 
quent ecclesiastics  ex  infortnata  conscietitia,  or  without  any 
previous  trial,  extend  ?  In  other  words,  what  kind  of  pun- 
ishment can  bishops  inflict  ex  informata  conscientia  ?  Only 
these  two  penalties:  i.  The  prohibition  to  ascend  to  or  re- 
ceive sacred  orders ;  2,  the  suspension  from  orders  already 
received,  and  also  from  ecclesiastical  degrees  or  offices,  and 
dignities  or  honors.  That  only  these  and  no  other  punish- 
ments can  be  imposed  ex  ififormata  conscientia,  is  beyond 
doubt,  and  plainly  manifest  from  the  Council  of  Trent, 
chapter  i.,  sess.  14,  which  forms  the  foundation  and  is  the 
parent  of  the  power  to  proceed  ex  informata  conscietitia. 

1287.  Now,  suspension  from  orders  {suspensio  ab  or  dine) 

'  Bouix,  1.  c,  p.  364.  ■■ 


in  Ecclesiastical  Courts,  also  in  the  U.  S.         319 

and  ecclesiastical  degrees  and  dignities  is  not  the  same  as  sus- 
pension from  benefice  {suspcnsio  a  bencficid), — i.e.,  suspension 
from  receiving  and  administering  the  income  of  one's  bene- 
fice or  office, — much  less  deprivation  or  dismissal  {privatio 
beneficii)  from  one's  benefice,  ecclesiastical  office,  or  parish. 
Hence  bishops,  also  in  the  United  States,  can,  ex  infonnata 
conscientia,  or  without  a  previous  trial,  suspend  ecclesiastics 
only  from  the  exercise  of  .  the  acts  of  the  ordo  already 
received,  but  not,  at  least  directly,  from  administering  or 
receiving  the  income  of  their  parish,  benefice,  or  office ; 
and  a  fortiori  they  cannot,  even  with  us,  ex  infonnata 
conscientia  impose  dismissal  from  benefice,  parish,  or  office.' 
The  reason  is  that  penal  laws,  such  as  the  chapter  i.,  of 
sess.  14,  of  the  Council  of  Trent,  in  question,  must  be 
strictly  construed.  In  other  words,  they  must  be  construed 
to  impose  only  those  penalties  which  are  expressly  and 
clearly  mentioned.  Now,  the  above  Tridentine  law  does  not 
say  one  word  about  suspension  a  bcncficio.  Neither  sus- 
pension, therefore,  nor  dismissal  from  benefice  can,  even  with 
us,  be  inflicted  ex  infonnata  conscientia? 

1288.  We  said  under  the  preceding  number,  but  not,  at 
least  directly,  etc.  ;  for  an  ecclesiastic  suspended  ex  i7tfonnata 
conscientia  must  provide  the  ecclesiastic  who  takes  his  place 
while  he  remains  suspended  with  a  suitable  income  or  main- 
tenance, the  amount  of  which  is  determined  by  the  bishop. 
Hence  an  ecclesiastic  suspended  ex  infonnata  conscientia  is 
by  this  suspension  deprived  indirectly  of  part  of  his  income 
or  salary.^ 

1289.  As  the  bishop  has  no  power  to  punish  regulars, 
save  in  certain  cases,  his  power  to  proceed  ex  informata  con- 
scientia extends  only  to  secular  ecclesiastics,  but  not,  generally 
speaking,  to  regulars.  We  sdij ,  generally  speakifig;  for  there 
are  some  exceptions.     Thus  the  bishop,  also  in  the  United 

'  Our  Counter-Points,  n.62. 

'  Stremler,  1.  c,  p.  314;  cf.  Bouix,  1.  c,  p.  357.  8  lb. 


320  Of  Extraordinary  Criminal  Trials 

States,  can  suspend  regulars  ex  inforviata  conscicntia,  and 
without  informing  them  of  the  cause  or  reasons  therefor, 
from  the  hearing  of  confessions,  for  a  new  supervening 
cause  or  reason,  which  concerns  confessions, — ex  nova  super- 
venientc  causa,  confessiones  concernente, — and  that  even  when 
these  regulars  have  been  approved  by  him  for  confessions 
without  any  limit  of  time.* 

1290.  Speaking  of  regulars,  we  observe  here  in  passing, 
though  this  is  hardly  the  proper  place  for  it,  that  regulars, 
with  us,  who  are  in  charge  of  parishes  or  congregations  can 
be  removed  by  the  bishop  from  the  parish  for  unfitness, — v.g., 
illiteracy,  or  for  crime, — not  indeed  ex  informata  consciejitia, 
but  yet  without  the  trial  prescribed  in  the  Instruction  of  the 
S.  C.  de  Prop.  Fide,  dated  July  20,  1878 — this  Instruction 
being  only  for  secular  ecclesiastics — or  without  any  other  trial 
or  judicial  proceedings.  Nor  is  he  bound  to  consult  with  the 
regular  superior  in  doing  so  ;  and,  vice  versa,  the  religious 
superior  can  do  the  same  without  consulting  the  bishop." 
Observe,  moreover,  that  the  power  to  proceed  ex  informata 
co7iscientia  belongs  also  to  regular  prelates,  so  far  as  their 
subjects  are  concerned.  Hence  the  Council  of  Trent  in- 
creased the  power  of  regular  prelates  in  this  respect.  For 
before  that  Council  they  could  only  prohibit  the  ascent  to 
sacred  orders ;  whereas  now  they  can  also  suspend  from 
orders  already  received,  ex  informata  conscicntia. 

1291.  The  above  teaching  regarding  the  power  of  bishops 
to  proceed  ex  informata  cojtscientia  applies  also  to  the  United 
States.  Thus,  first,  it  is  certain  that  the  power  to  proceed 
ex  informata  conscicntia  or  without  trial  was  not  taken  away 
from  our  bishops  by  the  Instruction  of  the  Propaganda 
dated  July  20,  1878.  This  is  evident  from  this  Instruction 
itself,  and  is,  moreover,  expressly  decided  in  the  supplemental 

'  Clem.  X.  Const.  Superna,  21  Junii,   1670,  §   Et  eos;  Giraldi,  Expos.   Jur. 
Pont.,  Pars  ii.,  sect.  43. 

*  Supra,  n.  256;  Giraldi,  1.  c. 


171  Ecclesiastical  Courts,  also  in  the  U.  S.        321 

declaration  of  the  S.  C.  de  Prop.  Fide.'  Secondly,  with  us, 
as  elsewhere,  only  two  kinds  of  penalties  can  be  inflicted 
ex  informata  conscientia — namely,  i,  the  prohibition  to  re- 
ceive higher  orders ;  2,  suspension  from  the  ordo  already 
received,  and  also  from  ecclesiastical  degrees  and  dignities, 
but  not  a  beneficio,  as  already  explained.  Dismissal,  there- 
fore, from  parish,  or  excommunication,  or  interdict,  or  other 
ecclesiastical  penalties  or  grave  disciplinary  corrections, 
such  as  remaining  in  some  monastery  for  a  time,  can  be 
inflicted  with  us,  at  present,  only  upon  a  previous  trial  before 
the  Commission  of  Investigation,  as  ordained  by  the  Instruc- 
tion of  July  20,  1878.' 

1292.  Q.  For  what  kind  of  crimes  can  the  bishop  impose 
suspension  ex  informata  co7iscientia,  or  without  trial  ? 

A.  We  premise :  Bishops  can  inflict  suspension  ^^  z;//(?r- 
mata  conscientia  only  for  crime, — i.e.,  only  upon  ecclesiastics 
who  are  guilty  of  crime, — and  not  for  other  causes.  To 
understand  this  better,  we  remark  that  the  bishop  may  sus- 
pend an  ecclesiastic  from  the  exercise  of  his  ordo,  not  only 
for  crime,  but  also  for  incapacity  or  unfitness,  and  illiteracy 
or  want  of  learning.^  Now,  in  the  latter  case  the  bishop 
cannot  impose  suspension  ex  itifortnata  conscientia,  or  in  virtue 
of  the  cap.  i.,  sess.  xiv.,  C.  Trid.,  de  Ref.,  so  that  no  appeal 
can  be  taken  by  the  person  thus  censured.  For  the  S.  C.  C." 
has  expressly  declared  that  from  such  a  suspension  it  is 
allowed,  not  only  to  have  recourse  to  the  Holy  See,  as  in 
the  cases  of  suspension  ex  informata  conscientia,  but  to  appeal 
in  the  proper  sense  of  the  word,  though  only  ad  effectum 
dcvoluti-ouni,  and  not  suspensivnm.^ 

1293.  We  now  answer :  It  is  certain  that  the  bishop  can 
impose  suspension  ex  informata  conscientia — that  is,  without 
any  trial  whatever,  and  in  such  manner  as  to  cut  off  the  right 

•  Ad  Dubia,  §  iv.  Per  Instructionem.  2  qi  p^^  Dubia,  §  i. 

^  C.  Trid.,  sess.  14,  c.  3,  de  Ref.  ■*  In  Calaguritana,  10  Maii,  1625. 

'  Giraldi,  1.  c. ;  ib.,  sect.  xlv. ;  Bouix,  1.  c,  p.  342. 


32  2  Of  Extraordinary  Crimmal  Trials 

of  appeal  proper — when  the  crime  is  occult.  This  is  ex- 
pressly stated  in  the  Council  of  Trent.'  Can  he  also  do  so 
when  the  crime  is  public?  Bouix '  maintains  the  affirmative, 
though  he  admits  that  the  contrary  is  held  in  Rome,  and 
adds,  moreover,  that  it  were  unlawful  for  a  bishop  to  impose 
suspension  ex  informata  conscientia  for  a  public  crime,  except 
for  sufficient  reasons — that  is,  except  where  the  ordinary 
mode  of  procedure  cannot  be  observed  without  great  injury 
to  the  public  or  common  good  of  the  Church  or  faithful.^ 

1294.  The  negative,  however,  is  the  common  opinion  of 
canonists,  is  the  one  followed  in  Rome  by  the  sacred  con- 
gregations, and  held  there  by  canonists,  and  is  therefore  the 
more  correct,  nay,  at  present  the  only  true  and  safe,  opinion. 
That  this  is  the  opinion  held  by  the  Roman  canonists,  Bouix 
himself  clearly  states.*  He  says  that  the  Roman  canonists 
hold  that,  when  the  crime  is  public,  the  bishop  cannot  pro- 
ceed ex  inforinata  conscientia,  but  must  observe  the  ordinary 
forms  of  judicial  procedure  ;  that  the  opinion  holding  the 
contrary  is  not  only  not  probable,  but  is  clearly  against  the 
meaning  and  object  of  the  Tridentine  decree,  cap.  i.,  sess. 
xiv.,  de  Ref. 

1295.  That  this  opinion — namely,  the  negative — is,  more- 
over, the  one  followed  by  the  sacred  congregations  in  Rome, 
especially  at  the  present  day,  there  can  be  no  doubt.  We 
will  give  only  a  few  decisions.  The  first  is  the  decision 
of  the  S.  C.  C.  in  S.  Agathae  Gotkorum,  Feb.  26,  1853.  The 
case  decided  is  as  follows:  On  the  13th  of  October,  1851, 
the  bishop  of  the  diocese  of  St.  Agatha  of  the  Goths,  situate 
in  the  kingdom  (formerly  so  called)  of  Naples,  for  "  causes 
known  to  himself,"  suspended  the  archpriest,  Peter  D'Am- 
brose,  ex  informata  conscientia,  from  the  archipresbyteral 
dignity,  the  canonship,  the  care  of  souls,  and  the  exercise  of 

'  Sess.  14,  cap.  i.,  de  Ref.  '  De  Jud.  Eccl.,  vol.  ii.,  pp.  325,  329  sq. 

'  Bouix,  1.  c,  pp.  343,  344.  *  lb.,  p.  325. 


in  Ecclesiastical  Courts,  also  in  the  U.  S.        323 

sacred  orders,  for  an  indefinite  period  of  time.  The  case  was 
brought  before  the  Holy  See — namely,  the  S,  C.  C.  D'Am- 
brose,  or  rather  his  advocate,  impugned  the  validity  of  the 
censure  or  episcopal  sentence,  i,  because  the  alleged  crime  in 
question  was  not  occult,  but  public ;  2,  because  the  censure 
was  inflicted  without  any  limit  of  time. 

1296.  The  case,  after  having  been  argued  on  both  sides, 
was  formally  proposed  to  the  S.  C.  C.  in  the  following  man- 
ner:  "An  constet  de  validitate  suspensionis  in  casu?"  The 
answer  or  decision,  as  given  on  the  26th  of  February,  1853, 
was :  "  Negative,  salvo  jure  episcopo  procedendi  prout  de 
jure."  *  From  this  decision,  then,  it  is  evident  that  the  bishop 
cannot  inflict  sentence  ex  informata  conscicntia  when  the  crime 
is  occult,  nor  for  an  indefinite  period  of  time,  or  in perpetuum  ; 
that,  if  he  does  so,  his  sentence  is  not  only  illicit  and  unjust, 
but  null  and  void,  and  therefore  its  violation  does  not  pro- 
duce irregularity. 

1297.  We  come  now  to  another  decision,  which  is  of  very 
recent  date — namely,  that  given  by  the  S.  C.  C.  on  Dec.  20, 
1873,  in  Bosnien.  et  Sirmien.  This  decision  is  of  the  greatest 
weight,  owing  to  the  fact  that  the  S.  C.  Ep.  et  Reg.  itself,  in 
its  Instruction  of  June  11,  1880,  concerning  the  new  mode 
of  procedure  in  criminal  and  disciplinary  causes  of  eccle- 
siastics, for  ecclesiastical  courts  or  curias  in  countries  where 
canon  law  fully  obtains,  refers  to  it  by  name,  and  lays  it 
down  officially  as  the  rule  for  future  cases. 

1298.  The  case  decided  is  as  follows:  On  Sept.  11,  1872, 
a  certain  bishop  (neither  the  name  of  the  bishop,  nor  of  the 
priest,  nor  of  the  diocese  is  mentioned)  inflicted  ex  informata 
conscientia  suspension  upon  a  certain  parish  priest  of  his  dio- 
cese. The  latter  had  recourse  to  the  Holy  See — namely, 
the  S.  C.  C.  His  advocate  impugned  the  validity  of  the 
bishop's  decree  ex  informata  conscientia,  chiefly,   i,  because 

'  Ap.  Acta  S.  Sedis,  vol.  vii.,  p.  574;  Stremler,  1.  c,  pp.  320,  639. 


324  Of  Extraordinary  Criminal  Trials 

the  alleged  crime  for  which  his  client  had  been  thus  sus- 
pended was  public,  whereas  the  Council  of  Trent,  sess.  xiv., 
chapter  i,  authorized  such  suspension  only  for  occult  crimes  : 
2,  because  the  suspension  was  for  an  indefinite  period  of 
time,  whereas  the  S.  C.  C.  does  not  allow,  especially  in  more 
recent  times,  suspensions  ex  inforniata  coiiscieiitia  to  be  in 
flicted  in  perpetuum  or  for  an  indefinite  period,  save  upon  due 
trial,  as  prescribed  by  the  Council  of  Trent,  sess.  xxi.,  chap- 
ter 6,  de  Ref. 

1299.  The  S.  C.  C,  having  taken  cognizance  of  the  cause, 
on  Dec.  20,  1873,  decided  as  follows:  "Decretum  ex  infor- 
mata  conscientia  in  casu  non  obstare  quominus  procedatur 
in  causa  appellationis  prout,  et  quatenus  et  coram  quo  de 
jure."  To  understand  this  decision  more  fully,  it  is  neces- 
sary to  remark,  that  prior  to  the  issuing  of  the  decree  ex 
inforniata  conscientia  by  the  bishop,  on  Sept.  11,  1872,  the 
bishop's  court  or  consistory  {co7isistorium  episcopate)  had, 
on  July  4,  1872,  given  the  priest  in  question  a  trial,  and  pro- 
nounced sentence  against  him.  From  this  sentence  the  priest 
appealed  to  the  metropolitan  within  ten  days.  Hereupon 
the  bishop,  foreseeing  a  lengthy  litigation,  and  resolving  to 
suppress  any  scandal  that  might  follow  from  such  litigation, 
issued  the  above  suspension  ex  infortnata  conscientia,  so  that 
the  priest  might  not  be  able  to  prosecute  his  appeal  before 
the  metropolitan,  since  there  is  no  appeal  against  sentences 
ex  inforniata  conscientia. 

1300.  The  S.  C.  C,  however,  decided,  as  we  have  seen, 
that  the  bishop's  sentence  ex  inforniata  conscientia  did  not 
cut  off  the  appeal.  Hence  we  infer,  i,  that  by  direct  impli- 
cation the  Holy  See  decided  that  the  bishop's  sentence  in 
the  case  was  null  and  void ;  otherwise  it  would  certainly 
have  been  a  valid  obstacle  or  hindrance  to  the  appeal. 
2.  We  infer,  moreover,  that  the  bishop's  sentence  was  invalid 
{a)  because  the  crime  in  the  case  was  public ;  {b)  because  the 
suspension  in  the  case  was  for  an  indefinite  period  of  time. 


in  Ecclesiastical  Courts,  also  in  the  U,  S.        325 

What  makes  these  inferences,  especially  the  one  concerning 
the  occult  crime,  perfectly  certain,  is  the  decision,  above 
quoted,  of  the  S.  C.  Ep.  et  Reg- ,  given  seven  years  after- 
wards—namely, on  the  nth  of  June,  1880.  In  this  latter 
decision,  or  rather  Instruction,  the  S.  C.  Ep.  et  Reg.  ex- 
pressly  refers  to  the  above  case  and  its  decision,  and  declares 
that  the  rules  and  restrictions  with  regard  to  the  exercise  of 
the  power  to  proceed  ex  informata  conscientia  as  embodied 
in  said  decision  and  constantly  followed  by  the  S.  C.  C, 
shall  serve  as  a  rule  for  future  cases. 

1 301.  Lest,  however,  any  doubt  might  remain  in  the  mat- 
ter, the  S.  C.  Ep  et  Reg.,  in  the  same  Instruction,,  expressly 
declares  that  suspension  ex  informata  conscientia  can  be  in- 
flicted only  for  occult  crimes.  The  words  of  the  S.  C.  Ep 
et  Reg.  are  :  "  Plenam  quoque  vim  servat  suam  extrajudiciale 
remedium  ex  informata  conscientia,  PRO  CRIMINIBUS  OCCUL- 
Tis,  quod  decrevit  S.  Tridentina  Synodus  in  sess.  14,  cap.  i, 
de  Reform,  adhibendum,  cum  illis  regulis  et  reservationibus, 
quas  constanter  servavit  pro  dicti  capitis  interpretatione  S. 
C.  Congregatio  in  pluribus  resolutionibus,  et  praesertim  in 
Bosnien.  et  Sirmien.,  20  Decembris,  1873."  '  This  last  decision 
in  Bosn.  et  Sirm.,  here  referred  to,  is  the  one  just  explained. 
Here,  then,  we  have  a  clear  and  undoubted  decision  or  dec- 
laration that  the  decree  of  the  Council  of  Trent,  chapter  i, 
sess.  xiv.,  does  not  extend  to  public  crimes. 

1302.  Finally,  a  decision  given  by  the  S.  C.  C.  more  re- 
cently still — namely,  on  Sept.  11,  1880 — confirms  the  above. 
The  case  decided  was  this  :  A  certain  parish  priest,  who  had 
made  himself  very  odious  to  his  people  and  the  civil  authori- 
ties, by  his  alleged  avarice  and  hasty  temper,  was  first  re- 
peatedly warned  by  his  bishop,  and  finally,  when  the  admoni- 
tions proved  of  no  avail,  suspended  ex  inf.  consc.  from  his 
parochial  office — "  ab  officio  parochiali."     He  had  recourse  to 

'  Instr.  S.  C.  Ep.  et  Reg.,  ii  Junii,  1873. 


326  Of  Extraordi7iary  Criminal  Trials 

Rome,  and  impugned  the  bishop's  sentence  ex  inf.  consc. 
chiefly  on  the  ground  that  it  was  inflicted  for  alleged  crimes 
or  acts  which  were  not  occult,  but  public.  The  decision  of 
the  S.  C.  C.  reversed  the  bishop's  decree,  but  still  authorized 
him  to  proceed  against  the  accused  ad  fonnavi  juris — i.e.,  by 
a  regular  trial.  The  sacred  congregation  thereby  showed 
that  it  considered  the  charges  against  the  accused  to  be  of  a 
grave  character,  but  yet  condemned  the  mode  of  procedure 
ex  inf.  consc,  as  the  crime  was  not  occult,  but  public,  and  there- 
fore punishable  in  the  ordinary  way — i.e.,  by  a  proper  trial.' 

1303.  Finally,  that  the  negative,  or  opinion  which  main- 
tains that  .bishops  can  proceed  ex  inforviata  conscicntia  only 
in  occult  crimes,  but  not  in  public,  is  the  common  opinion  of 
canonists,  is  equally  certain.  It  is  held  by  Barbosa/  Pirhing, 
Monacelli,^  Pignatelli,  Benedict  XIV.,  Lucidi,  and  a  number  of 
others.*  Space  permits  us  to  quote  but  one  or  two  of  them. 
Pope  Benedict  XIV.,  having  given  the  Tridentine  decree  in 
question,^  thus  argues  :  "  Ex  quibus  verbis  coUigitur,  posse 
episcopum,  OB  OCCULTUM  CRIMEN,  etiam  etrajudicialiter  cog- 
nitum  .  .  .  asusceptijam  ordinis  ministerio  eosdem"  (clericos) 
"  interdicere."  '  In  his  Const.  Ad  Militantis,  Apr.  i,  1742,  he 
states  that,  among  other  cases,  there  is  no  appeal  "ad versus 
suspensionem  ab  ordinibus  jam  susceptis,  OB  OCCULTUM 
CRIMEN,  sive  ex  informata  conscientia,  juxta  dispositionem 
Sacri  Concilii,  sessione  14,  de  Reform.,  cap.  i."  Here,  as  the 
advocate  in  the  above  causa  Bosn.  et  Sirm.  says,  Benedict  • 
XIV.  uses  the  phrases  ob  occulttun  crimen  and  ex  ijtformat a  con- 
scientia as  meaning  the  same  thing.'  Wherefore,  according 
to  him,  to  proceed  for  occult  crimes  is  the  same  as  to  pro- 
ceed ex  informata  conscientia. 

1304.  Lucidi,*  having  stated  that  the  bishop  can  impose 

'  Ap.  ActaS.  Sedis,  vol.  xiv.,  p.  292.  '  lus  Can.  1.  i,  in  cap.  Ad  aures,  n.  4. 

^  Form.,  torn,  i.,  tit.  13,  n.  29.  *  Ap.  Acta  S.  Sedis,  vol.  vii.,  p.  573. 

*  Sess.  14,  c.  i.,  de  Ref.  *  De  Syn.  Dioec,  1.  12,  c.  8,  n.  3. 

'  Ap.  Acta  S.  Sedis,  voL  vii.,  p.  573.  *  De  Visit.  SS.  LL.,  vol,  i.,  p.  386,  n.  269. 


in  Ecclesiastical  Courts,  also  in  the  U.  S.        327 

suspension  for  occult  crimes,  and  explained  when  a  crime  is 
considered  occult,'  when  public,  continues  as  follows  :  "  Ca- 
vere  tamen  quisque  debet  episcopus,  ne,  quod  publicum  et 
notorium  jam  est,  perinde  ac  esset  occultum,  falso  sibi  animo 
reputans  suspensionem  ex  informata  conscientia  decernat ; 
hujusmodi  enim  decretum  minime  substineretur,  prout  evenit 
in  S.  Agat.  Gothorum,  26  Febr.,  1853." '  From  what  has  been 
said,  it  is  plain  that,  according  to  the  common  opinion  of 
canonists,  sentences  ex  informata  consciejitia,  when  imposed 
for  occult  crimes,  are  illicit,  nay  invalid,  at  least  in  the  sense 
that  they  will  be  declared  invalid  by  the  S.  C.  C  upon  re- 
course to  it.  We  say,  at  least  in  the  sense  ;  for  some  canonists 
hold  that  they  are  ipso  facto  or  ipso  jure  invalid.' 

1305.  That  the  power  to  proceed  ex  informata  conscientia 
does  not  extend  to  public  cases  or  crimes,  seems  manifest  from 
the  Council  of  Trent  itself.  For  this  Council,  while  on  the 
one  hand,  in  its  14th  session,  chapter  i,  allowing  of  sentences 
ex  informata  conscientia  or  without  any  trial,  on  the  other  re- 
enacts  and  confirms,  in  session  24,  chapter  5,  the  decretal  of 
Pope  Innocent  III.,  Qualiter  et  qnando  24  x,  de  Accus.  (v.  i). 
Now,  this  latter  decretal  wholly  excludes  sentences  ex  infor- 
mata conscientia,  and  prescribes  that  superiors  shall  in  no  case 
whatever  punish  their  subjects,  except  upon  a  regular  canoni- 
cal trial.  But  if  the  Council  of  Trent,  in  its  14th  session, 
chapter  i,  de  Ref.,  had  authorized  bishops  to  proceed  ex 
informata  conscientia,  even  where  the  crime  was  public,  it 
would  virtually  have  abolished  ecclesiastical  trials  altogether^ 
and  therefore  would  have  clearly  contradicted  itself. 

1306.  It  is  therefore  manifest  that  the  Council  of  Trent 
allows  of  sentences  ex  informata  conscientia,  or  procedure 
without  trial,  only  in  rare,  exceptional,  and  extraordinary 
cases  ^ — namely,  in  occult  cases,  and  even  then,  only   when 

'  De  Visit.  SS.  LL.,  vol.  i.,  p.  387,  n.  272.  "^  lb.,  n.  273. 

'  Cf.  Stremler,  1.  c,  p.  319;  cf.  Praelectiones  S.  Sulpit.,  vol.  iii.,  n.  692. 
*  Bouix,  1.  c,  p.  343. 


328  Of  Extraordinary  Criminal  Trials 

there  is  sufficient  reason  for  it ;  that  as  in  the  past,  so  in  the 
future,  the  ordinary  and  regular  mode  of  procedure  shall  be 
by  canonical  trial.'  This  is  also  apparent  from  the  scope 
which  the  Council  of  Trent  had  in  view  in  enacting  its  cele- 
brated cap.  Ciun  honestius.  The  Council  did  not  wish  to 
abolish,  but  simply  to  supply  the  defects  of,  trials  as  then  in 
use.  Now  the  defect  was,  that  in  occult  cases  there  could 
be  no  trial,  and  consequently  no  punishment.'  Hence  the 
Council  simply  intended  to  supply  a  means  for  punishing 
even  occult  crimes. 

1307.  How  exceptionally  and  rarely  the  power  to  proceed 
ex  inforjnata  conscientia  should  be  used,  also  in  the  United 
States,  the  S.  C.  de  Prop.  Fide  thus  teaches,  in  its  answer 
to  the  questions  proposed  by  bishops  of  this  country  rela- 
tive to  the  Instruction  of  July  20,  1878  :  "  Per  Instructionem 
sublata  non  est  episcopis  extraordinaria  facidtas  procedendi 
ad  suspensionem  ex  informata  conscientia,  quatenus  gravis- 
simas  ct  canonicas  causas  concurrere  in  Domino  judicaverint, 
aut  gravi  et  urgenti  tiecessitate,  pro  salute  animarum,  etiam 
non  audito  Consilio,  remedio  aliquo  providendum  esse  cen- 
suerint.'"' 

1308.  This  declaration  also  points  out  plainly  the  nature 
and  quality  of  the  crimes  for  which  suspension  ex  inf.  consc. 
can  be  inflicted.  First,  the  crime  should  be  very  grave  ; 
this  is  expressed  in  the  above  passage  by  the  words  causae 
gravissimae.  It  should  not  be  simply  an  offence  of  a  passing 
character,  and  committed  through  mere  frailty  ;  it  should  be 
such  as  to  warrant  the  belief  that  the  offender  will  remain 
addicted  to  it,  unless  punished.  Secondly,  that  it  should  be 
occult  is  indicated  by  the  words  canonicae  causae.  Thirdly, 
it  should,  moreover,  be  injurious  to  the  spiritual  welfare  of 
the  faithful.  If  it  were  injurious  only  to  its  author,  it  could 
not  be  punished  ex  informata  conscientia.     This  is  also  ex- 

'  Cf.  Stremler,  1.  c,  p.  317.  '  Ad  Dubia,  §  iv.,  Per  Instructionem. 


m  Ecclesiastical  Courts,  also  in  the  U.  S.         329 

pressed  in  the  above  declaration  by  the  words  "  aut  gravi," 
etc.  Fourthly,  suspension  ex  informata  conscientia  should  be 
resorted  to  only  when  there  is  no  other  means  of  remedying 
the  evil.' 

1309.  What  is  here  meant  by  an  occult  crime?  We  have 
already  seen  that  a  crime  may  be  occult  {ci)  in  a  strict  sense 
— namely,  when  it  cannot  be  juridically  proved,  v.g.,  when 
there  is  but  one  witness ;  and  in  a  wide  sense — namely, 
when  it  can  be  juridically  proved  indeed,  but  is  not  known  to 
more  than  two  or  three,  or  at  most  five  persons.'  Now, 
some  canonists  seem  to  mean  by  occult  crimes  for  which  sus- 
pension can  be  imposed  ex  informata  conscientia,  only  those 
which  are  strictly  occult;  others,  those  which  are  occult 
merely  in  a  large  sense.  Lucidi '  very  well  says,  that  in  a 
particular  case  the  bishop  is  the  proper  judge  as  to  whether 
the  crime  is  occult  or  not,  provided,  however,  he  contains 
himself  within  the  limits  of  what  makes  a  crime  occult. 

1 3 10.  Manner  of  inflicting  sent  eric  cs  ex  informata  conscientia. 
— In  proceeding  ex  informata  conscientia  the  bishop  can  pro- 
ceed, to  use  the  words  of  the  Council  of  Trent,  quomodolibet, 
etiam  extrafiidicialiter — that  is,  he  is  not  bound  to  observe 
any  judicial  formalities  whatever,  whether  of  formal  or  sum- 
mary trials.  In  other  words,  the  bishop  is  not  obliged  to 
give  the  supposed  delinquent  the  benefit  of  a  trial,  whether 
solemn  or  only  summar)^  A  suspension  imposed  ex  inf. 
consc.  is  therefore  the  same  as  a  suspension  inflicted  without 
any  judicial  proceedings,  for  an  occult  crime,  which  is 
known  to  the  bishpp,  with  certainty  indeed,  but  extrajudi- 
cially ;  *  from  which  suspension,  moreover,  there  is  no  appeal, 
but  only  a  recourse  to  the  Pope. 

131 1.  Hence  the  bishop  need  not  inform  the  delinquent 
of  the  charges  made  against  him,  nor  admonish  him  before- 
hand {monitio  canonica),  nor  cite  him  for  trial,  nor  hear  hisde- 

'  Stremler,  1.  c,  p.  324.  *  Supra,  n.  1255. 

»  De  Visit.  SS.  LL.,  vol.  i.,  p.  387,  n.  272.  ••  Stremler,  1.  c,  p.  325. 


330  Of  Extraordinary  Criminal  Trials 

fence  or  give  him  any  opportunity  of  defending  himself.  In 
the  sentence  itself,  the  bishop  need  not  state  the  cause  or 
crime  for  which  he  inflicts  the  suspension.  We  said  above,' 
the  bishop  is  not  bound,  etc.  /  for  he  may,  if  he  wishes,  accord- 
ing to  Bouix,*  observe  in  whole  or  in  part  the  judicial  for- 
malities, whether  of  formal  or  summary  trials,  provided  he 
states  in  the  sentence  that  he  acts  by  and  in  virtue  of  the 
ist  chapter  of  the  14th  session  of  the  Council  of  Trent,  on 
Reformation.  This  opinion  of  Bouix  is  in  harmony  with  his 
teaching  that  the  bishop  can  proceed  ex  informata  conscientia 
even  in  public  crimes.  But,  as  we  have  seen,  this  teaching 
is  scarcely  any  longer  tenable.  The  bishop,  therefore,  must 
take  care  not  to  make  use  of  any  act  or  judicial  formalities 
by  which  the  crime  will  become  public.  Hence  if  his  tribu- 
nal is  composed  of  several  assessors,  such  as  the  members  of 
Commissions  of  Investigation  in  the  United  States,  it  would 
seem  at  least  doubtful  whether  he  can  allow  the  cause  to  be 
tried  by  it,  as  by  this  very  fact  the  crime  would  seem  to  be- 
come public — i.e.,  known  to  more  than  five  persons. 

1 312.  In  any  case,  however,  the  bishop  will  act  prudently 
if,  wherever  circumstances  will  allow,  he  will  privately  or 
informall}^  call  the  delinquent,  make  known  to  him  the 
charges,  and  hear  his  explanations  or  defence.  However, 
says  Stremler,^  in  the  sentence  itself  of  suspension  he  should 
not  mention  this ;  but  should  confine  himself  to  saying  that, 
for  causes  of  which  he  is  certain,  he  declares  N.  suspended, 
in  virtue  of  the  power  conferred  upon  bishops  by  the  Coun- 
cil of  Trent,  sess.  xiv.,  chapter  i,  de  Ref.  This  mention  of 
the  Council  of  Trent  is  absolutely  necessary,  so  that  the 
delinquent  may  be  able  to  judge  of  the  nature  of  the  punish- 
ment inflicted  upon  him,  and  regulate  his  appeal,  or  rather 
recourse,  accordingly/ 


'  Supra,  n.  1310.  '  L.  c,  p.  339. 

'  L.  c,  p.  325.  *  Stremler,  1.  c,  p.  325, 


in  Ecclesiastical  Courts,  also  in  the  U.  S.         331 

13 13.  We  subjoin  from  Monacelli '  the  formula  for  sus- 
pension ex  informata  conscientia :  "  Constito  nobis,  presby- 
terum  N.  esse  reum  criminis,  eum  ob  causas  quae  animum 
nostrum  digne  movent,  et  de  quibus  Deo  et  Sedi  Apostolicae, 
cum  habuerimus  in  mandatis,  rationem  reddere  debemus,  et 
ex  informata  conscientia,  a  divinis  suspendimus  per  sex"  (tres) 
"  menses,  et  suspensum  declaramus,  ac  ei  decretum  suspen- 

sionis  intimari  mandamus. 

"N.  Episcopus  N., 

"■  N.  Actuariusy 

1 3 14.  However,  from  the  fact  that  the  bishop,  in  pro- 
ceeding ex  informata  conscientia,  need  not  give  the  accused 
any  trial  whatever,  or  observe  any  judicial  formalities,  it 
does  not  follow  that  he  need  have  no  certainty,  and  conse- 
quently no  sufficient  and  conclusive  proofs,  of  the  crime  or 
culpability  of  the  person  he  wishes  thus  to  suspend.  For  it 
is  beyond  doubt  that  the  bishop  must  be  perfectly  certain  of 
the  guilt  of  the  party ;  otherwise  he  would  sin  against  the 
very  law  of  nature,  which  forbids  an  innocent  person,  or  one 
who  is  probably  innocent,  to  be  condemned.  It  merely  fol- 
lows that  the  proofs  need  not  be  juridical — i.e.,  obtained  in  a 
canonical  trial  (with  us,  in  a  trial  before  the  Commission  of 
Investigation).  While,  therefore,  the  proofs  in  the  case  need 
not  be  juridical,  they  must,  nevertheless,  be  sufficient  to 
prove  the  guilt ;  in  other  words,  they  must  be  such  as  will 
establish  with  certainty  and  beyond  any  reasonable  doubt 
the  guilt  of  the  accused,  and  that  not  only  in  the  mind  of  the 
bishop,  but  also  of  the  Holy  See,  in  case  recourse  is  had  to 
it  by  the  suspended  ecclesiastic. 

131 5.  Hence,  as  Bouix '  says,  the  proofs  should  be  such 
that,  if  alleged  or  produced  in  a  regular  trial,  they  would  ju- 
ridically prove  the  guilt.  Otherwise,  the  suspension  will  not 
be  sustained  by  the  Holy  See.^     Hence  the  bishop  should 

'  Formul.  Leg.  Pract. ,  Pars  3,  art.   2,  form.  6,   annot.   4,   vol.  iii.,    p.    205. 
Romae,  1844.  -  L.  c,  p.  348.  ^  Stremler,  1.  c,  p.  326. 


332  Of  Extraordinary  Criminal  Trials 

not  inflict  suspension  ex  informata  conscicntia — v.g.,  against 
Titius,  even  though  the  latter  has  privately  and  without  wit- 
nesses confessed  his  crime  to  the  bishop  ;  or  even  where  the 
bishop  has  with  his  own  eyes  seen  Titius  committing  the 
crime,  or  even  though  he  has  the  unequivocal  testimony  of 
one  witness  who  is  above  all  suspicion.  The  reason  is,  that 
these  proofs  are  indeed  sufficient  to  convince  the  bishop  per- 
sonally, but  they  are  not  ample  enough  to  convince  the 
Holy  See.' 

13 16.  Q.  For  what  length  of  time  can  suspensions  ex  mfor- 
mata  conscientia  be  inflicted  ? 

A.  It  seems  certain,  according  to  \};\q  scntentia  commimis- 
sima  of  canonists,  that  at  the  present  day  they  cannot  be 
imposed  in  perpetuum,  nor  even  for  an  indefinite  period."  We 
say,  at  the  present  day  ;  for  formerly — that  is,  prior  to  the 
year  1777 — the  Holy  See — namely,  the  S.  C.  C. — seems  to 
have  held,  at  least  in  the  opinion  of  some  canonists,  that  sus- 
pensions could  be  inflicted  ex  informata  cofiscientia,  not  only 
temporarily,  but  also  in  perpetuum^  But  the  Holy  See  or 
the  S.  C.  C.  has  receded  from  this  view,  and  now  constantly 
follows  the  opposite  in  its  decisions.*  In  fact,  whatever 
Bouix  may  say  to  the  contrary,  the  decisions  given  by  the 
Holy  See  or  the  S.  C.  C.  since  the  year  1777,  as  construed 
by  Lucidi,''  Stremler,^  the  author  of  the  "  Praelectiones  Juris 
Can.  hab.  in  Sem.  S.  Sulpitii," '  and  other  eminent  canonists, 
clearly  show  that  it  (the  Holy  See)  does  not  recognize  in 
bishops  any  power  to  impose  suspension  ex  informata  con- 
scicntia "  in  perpetuum,"  or  even  for  an  indefinite  period.* 

'  Stremler,  1.  c. 

^  lb.,  p.  328;  Lucidi,  1.  c,  vol.  i.,  p.  385,  n.  267;  Praelectiones  in  Sem.  S. 
Sulp.,  torn.  3,  n.  691,  p.  97. 

^  S.  C.  C,  14  Julii,  15S3,  ap.  Giraldi,  Epos.  Jur.  Pont.,  Pars  ii.,  sect.  43,  p. 
848.    Romae,  1829.  *  S.  C.  C.  in  caus.  Lucion.,  8  Apr.,  1848. 

5  De  Visit.  SS.  LL.,  vol.  i.,  p.  385,  n.  267.  «  L.  c,  p.  329.  '  Vol.  iii.,  p.  97,n.69i. 

8  S.  C.  C.  in  caus.  S.  Severin.,  4  Apr.,  17 78;  in  Placentina,  26  Febr.,  1848; 
in  S.  Ag.  Goth.,  26  Feb.,  1853;  in  Bosn.  et  Sirm.,  20  Dec,  1873. 


in  Ecclesiastical  Cotirls,  also  in  the  U.  S.         333 

The  reason  is,  that  such  a  suspension  would  be  practically  the 
same  as  deprivation  or  absolute  dismissal  from  one's  office 
or  benefice,  which  cannot  be  inflicted  save  upon  the  requisite 
previous  warnings,  and  moreover  a  due  trial,  as  prescribed 
by  the  Council  of  Trent,  sess.  21,  chapter  6,  de  Ref.' 

13 17.  It  seems,  therefore,  certain,  notwithstanding 
Bouix's*  opinion  to  the  contrary,  that  bishops  can  inflict 
suspension  ex  informata  conscientia  only  for  a  certain  period 
of  time  or  until  the  delinquent  manifests  sufficient  signs  of 
amendment,  not  in  perpeUium  or  for  an  indefinite  period. 
Now,  for  what  length  of  time  can  such  suspension  be  im- 
posed ?  Stremler '  says  that  no  general  rule  can  be  laid 
down ;  that,  however,  two  or  three  months  is  already  a  long 
time,  andthat  the  suspension  should  rarely  last  longer;  that 
to  allow  such  suspension  to  last  more  than  six  months,  very 
exceptional  circumstances,  which  can  happen  but  very  sel- 
dom, should  exist. 

1 3 18.  What  becomes  of  such  suspensions  if  the  bishop 
who  has  inflicted  them  dies,  resigns  his  see,  or  is  transferred 
to  another  see?  As  these  suspensions,  unlike  regular  or 
ordinary  ecclesiastical  penalties,  are  inflicted,  so  to  say,  "  per 
modum  praecepti  particularis,"  and  not  "  per  modum  legis," 
they  cease  of  themselves,  and  without  any  further  formality, 
at  the  death  of  the  bishop.  For  a  particular  precept  ceases 
when  its  author  dies.  On  the  other  hand,  punishments 
which  are  inflicted  upon  due  trial  and  the  observance  of 
judicial  formalities  are  imposed,  so  to  say,  "per  modum 
legis,"  and  therefore  continue  in  force  even  after  the  death 
of  the  judge  from  whom  they  have  emanated."  Whether 
suspensions  inflicted  ex  informata  conscientia  cease  of  them- 
selves also  in  the  case  of  the  transfer  or  resignation  or 
removal  of  the  bishop  by  whom  they  have  been  imposed, 
is  not  so  certain. 

'  Supra,  nn.  1287,  1291.     '  L.  c,  p.  334.     '  L.  c,  p.  334.     *  Stremler,  I.  c,  p.  33i- 


334  Of  Extraordinary  Criminal  Trials 

1 3 19.  Has  the  vicar-general  power  to  inflict  suspension 
ex  informata  conscicntia  ?  Stremler  holds  that  he  has  not ; 
nay,  he  contends  that  the  bishop  cannot  even  authorize  the 
vicar-general  to  impose  such  suspension,  but  must  inflict  it 
in  person.  Monacelli  holds  the  same.  And  Giraldi '  says  : 
"  An  autem  competat "  (facultas  procedendi  ex  informata 
conscientia)  "etiam  vicari  generali  episcopi,  merito  dubitari 
posset;  cum  ex  cit.  cap."  (i,  sess.  xiv.,  de  Ref.)  "  Tridentino 
videatur  attributa  esse  solis  episcopis  et  praelatis."  The 
reason  given  by  Stremler*  is,  that  the  Council  of  Trent' 
speaks  only  of  bishops.  Now,  the  giving  of  such  an  extra- 
ordinary power  as  that  in  question  is  a  derogation  of  the 
common  law  of  the  Church,  and  therefore  must  be  most 
strictly  construed. 

Art.  IV. 

Criminal  Trial  of  Heretics  {Processus  Criyninalis  contra  Haere- 

ticos). 

1320.  Although,  as  we  have  seen,*  the  Holy  See  no  longer 
sends  special  inquisitors  through  the  various  parts  of  Christ- 
endom for  the  purpose  of  trying  and  sentencing  heretics,  as 
was  done  formerly,  yet  it  were  incorrect  to  imagine  that  the 
discussion  of  the  mode  of  procedure  against  heretics,  pecu- 
liar to  the  tribunals  of  the  Inquisition,  is  altogether  useless  at 
the  present  day.  For  bishops  are  still,  in  their  respective 
dioceses,  the  inquisitors  ex  officio  {inquisitores  nati )  in  matters 
of  heresy,  and  are  bound,  in  their  procedure  against  heretics, 
to  observe  the  peculiar  formalities  or  special  form  of  pro- 
cedure prescribed  by  the  law  of  the  Church  for  the  punish- 
ment of  crimes  against  the  Catholic  faith." 

1 32 1.  Moreover,  a  study  of  the  subject  will  dispel  the 

'  L.  c,  nota  ii.  *  L.  c,  p.  327.  '  Cap.  i,  sess.  14,  de  Ref. 

''  Supra,  n.  scx),  579.  *  Bouix,  de  Jud.  eccl.,  vol.  ii.,  p.  365. 


in  Ecclesiastical  Coiirts,  also  in  the  U.  S.         335 

false  and  erroneous  impressions  current  among  non-Catho- 
lics, in  regard  to  the  working  of  the  tribunals  of  the  Inquisi- 
tion, so  much  abused  and  perhaps  so  little  understood  by 
them.  The  peculiar  mode  of  procedure  against  heretics  is 
called  inquisition ;  and  the  tribunals  established  for  the  pur- 
pose of  proceeding  against  them  are  called  by  the  same 
name,  or  also  tribunals  of  the  Holy  Office.  There  are  two 
kinds  of  inquisitors — ordinary  and  delegated.  Every  bishop, 
as  we  have  already  seen,  is  the  ordinary  inquisitor  or  judge 
in  matters  of  heresy  in  his  own  diocese.'  He  has  also  power, 
at  least  as  delegate  of  the  Holy  See,  to  proceed  against 
exempt  persons — v.g.,  regulars — in  matters  of  heresy.''  Be- 
sides, from  the  time  of  Pope  Innocent  III.,  extraordinary  or 
delegated  inquisitors  were  also  appointed,  in  the  various 
parts  of  Christendom,  who  had  cumulative  power  with 
bishops  in  this  matter.'  By  custom,  only  the  tribunals  of 
the  delegated  inquisitors,  not  those  of  bishops,  were  termed 
tribunals  of  the  Inquisition  or  Holy  Office." 

1322.  Trial  for  heresy;  or  mode  of  procedure  in  causes  of 
heresy. — Inquisitors,  whether  ordinary  (namely,  bishops)  or 
delegated,  cannot  pass  sentence  and  inflict  punishment  upon 
any  person  for  crimes  pertaining  to  heresy,  except  upon  due 
trial.  This  trial,  however,  need  not  be  a  formal  or  solemn 
canonical  trial  or  process  {processus  ordinarius),  as  above 
traced  out,^  but  can  be  a  summary  trial  {processus  summarius), 
as  set  forth  above.^  "  Concedimus,"  says  Pope  Boniface  VIII., 
"■  quod  in  inquisitionis  haereticae  pravitatis  negotio  procedi 
possit  simpliciter  et  de  piano.'' '  Now,  as  we  have  shown, 
speaking  of  summary  trials,  to  proceed  summarily  or  sim- 
pliciter et  de  piano  does  not  mean  to  omit  all  the  formalities 
of  formal  canonical  trials,  but  only  some  of  them. 

1323.  In  fact,  it  is  certain  that  in  causes  of  heresy  the 

'  Clem.  Multorum  i,  de  Haeret.  (v.  3).  '  Cap.  9,  de  Haeret.  (v.  7). 

'  Supra,  n.  500,  579.  **  Craiss.,  Man.,  n.  6025.  *  Supra,  n.  932  sq. 

*  Supra,  n.  1265  sq.  '  Cap.  20,  de  Haeret.,  in  6°  (v.  2). 


''^6  Of  Extraordinary  Criminal  Trials 


oo 


accused  must,  on  pain  of  nullity  of  the  proceedings,  be  cited 
for  trial,  so  as  to  be  able  to  defend  himself.  The  judge 
must  allow  him  full  liberty  of  defending  himself,  just  as  in 
the  case  of  other  accused  parties,  or  of  defendants  in  causes 
other  than  those  of  heresy.  For  the  Church  fully  recognizes 
the  principle  that  the  right  of  self-defence  proceeds  from  the 
very  law  of  nature,  and  cannot  be  restricted,  much  less 
refused,  by  any,  even  ecclesiastical  judges.'  Hence,  too,  the 
accused  in  the  case  must  be  furnished  with  a  copy  of  the 
charges,  specifications,  proofs,  and  testimony  submitted 
against  him.  Otherwise  he  could  not  defend  himself  prop- 
erly, since  the  defence  consists  mainly  in  the  refutation  of 
the  charges  and  proofs  of  the  prosecution.  However,  the 
names  of  the  witnesses  need  not,  though  they  may,  be  made 
known  to  him.  This  is  peculiar  to  trials  in  causes  of  heresy.^ 
He  must,  moreover,  be  allowed  the  assistance  of  an  advocate.' 

1324.  The  accused  cannot  be  condemned  except  upon 
full  proof  {probatio  plena),  as  obtained  in  the  course  of  the 
trial.  Hence  he  cannot  be  convicted  or  condemned  upon 
mere  suspicions,  even  though  violent,  as  is  expressly  enacted 
by  Pope  Innocent  HI.' 

1325.  The  sentence  must  be  pronounced  with  the  advice 
of  experts  {periti).  Otherwise  the  trial  is  null  and  void.' 
This  is'  a  peculiar  feature  of  these  trials.  By  experts  are 
here  meant  theologians  or  canonists.  The  entire  trial,  or 
all  the  proceedings,  and  consequently  also  the  defence,  must 
be  submitted  to  them.  We  say,  "  with  the  advice"  ;  not 
"  with  the  consent."  Hence  the  judge,  though  obHged,  and 
that  sub  poena  millitatis,  to  listen  to  the  advice  of  these 
experts,  is  yet  not  bound  to  follow  it  in  passing  sentence. 
Finally,  while  the  defendant  cannot  lodge  an  appeal  proper 

'  Clem.  Pastoralis  2,  de  Sent,  et  re  jud.  (ii.  11). 

2  Cap.  20,  de  Haeret.,  in  6°  (v.  2).  '  Bouix,  1.  c,  p.  383. 

*  Cap.  Litteras  14,  de  Praesumpt.  (ii.  23);  Leuren.,  For.  Eccl.,  1.  5,  t.  7,  Q.  189. 

*  Cap.  12,  de  Haeret.,  in  6°  (v.  2).  


in  Ecclesiastical  Courts,  also  in  the  U.  S.         337 

against  the  final  sentence,  he  can  have  recourse  to  the  Holy 
See.  From  all  this  it  will  be  seen  how  unfounded  are  the 
assertions,  so  frequently  repeated  by  non-Catholic  writers, 
that  persons  accused  of  heresy  have  been  or  are  denied  the 
right  of  defending  themselves  before  the  tribunals  of  the 
Holy  Office. 


CHAPTER   V. 

ECCLESIASTICAL   CIVIL   PROCESSES   OR   TRIALS. 
(^De  Processu  Civ  Hi  Ecclesiastico.) 

1326.  As  in  secular  so  in  ecclesiastical  courts  or  judicial 
tribunals,  there  are  not  only  criminal,  but  also  civil  processes 
or  causes.  Now,  civil  causes  in  the  ecclesiastical  forum  are 
those  where  there  is  no  question  of  inflicting  penalties  for 
offences,  but  merely  of  obtaining  something  else.  Thus  a 
process  or  trial  regarding  the  validity  of  a  marriage,  the 
jurisdiction  of  a  prelate,  or  the  privileges  of  a  monastery,  is 
a  civil  cause  or  trial.'  Criminal  causes,  on  the  other  hand, 
are  those  where  crimes  or  delinquencies  against  the  public 
order  or  discipline  of  the  Church  are  punished.  When, 
therefore,  an  ecclesiastical  penalty  proper  is  to  be  imposed, 
the  cause  is  criminal.^ 

1327.  We  have  already  described  the  mode  of  procedure 
in  criminal  causes  ;  it  only  remains  to  give  a  short  outline  of 
the  mode  of  procedure  in  civil  causes  pertaining  to  the  eccle- 
siastical forum,  or  of  civil  trials  in  the  ecclesiastical  courts. 
Here  we  may  observe  that  civil  ecclesiastical  trials  have 
many  things  in  common  with  criminal  ecclesiastical  trials. 
Consequently,  various  questions  bearing  on  civil  ecclesias- 
tical trials  have  already  been  sufficiently  discussed  by  us 
above,  under  the  head  of  criminal  trials.  What  still  remains 
to  be  said  concerning  civil  trials  in  the  ecclesiastical  courts 
will  be  divided  into  two  parts.  The  first  will  treat  of  the 
ordinary  or  formal  trial  or  mode  of  procedure  in  civil  mat- 
ters {processus  ordinarius  in  materia  civili) ;    the  second,  of 

■  Our  Counter-Points,  n.  55.  '  lb.,  n.  56. 


Ecclesiastical  Civil  Processes  or   Trials.        339 

that  particular  mode  which  is  peculiar  to  certain  kinds  of 
ecclesiastical  civil  processes,  especially  in  matrimonial  causes. 
In  the  first  part,  therefore,  we  shall  set  forth  the  formalities 
of  civil  trials,  as  they  are  applicable  to  such  trials  in  general ; 
in  the  second,  we  shall  discuss  the  formalities  peculiar  to 
certain  kinds  of  civil  processes.  At  the  end  of  the  first  part 
we  shall  add  two  articles  regarding  appeals,  complaints  of 
nullity,  and  reinstatement. 

Art.  I. 

Of  the  Ordinary  Trial,  or  Mode  of  Procedure  in  Civil  Causes 
of  the  Ecclesiastical  Forum  {De  Processu  Ordinario  in 
Materia  Civili). 

1328.  The  various  stages  or  steps  in  civil  proceedings  or 
trials  are  very  much  like  those  of  criminal  trials.  The  civil 
trial  or  process  in  the  ecclesiastical  court  begins  with  the 
statement  {libellus)  or  bill  of  complaint  which  the  plaintiff,* 
either  personally,  or  through  his  agent  or  attorney,  presents  to 
the  judge,  and  in  which  he  demands  redress,  or  asks  that  some- 
thing be  done.''  This  bill  should  be  clear,  so  that  the  defend- 
ant to  whom  it  must  be  communicated  may  be  enabled  to 
deliberate  whether  he  should  yield  to  the  demand,  or  rather 
contest  the  matter.  As  this  bill  constitutes  the  basis  of  the 
trial,  and  of  the  subsequent  sentence,  it  should  be  rejected 
by  the  judge,  if  it  is  obscure  or  ambiguous.  For  further  in- 
formation regarding  this  bill,  see  above."  What  is  said  there 
concerning  bills  or  libelli  in  criminal  causes,  holds  also  of 
bills  or  libelli  in  civil  causes,  and  therefore  need  not  be  re- 
peated here. 

1329,  It  is  propeT  to  observe  here  that  what  has  just  been 
said  regarding  the  necessity  of  a  libellus  applies  only  to  ordi- 

'  Cap.  Dilecti  3,  de  Lib.  obi.  (ii.  3);  cf.  Munchen,  1.  c,  vol.  i.,  p.  252,  n.  i. 
*  Cf.  Craiss.,  Man.,  n.  6041.  ^  Supra,  n   989  sq. 


340        Ecclesiastical  Civil  Processes  or   Trials. 

nary  or  solemn  trials  in  civil  causes,  of  which  we  speak  in  this 
article ;  for  in  summary  ecclesiastical  trials  in  civil  matters 
this  bill  of  complaint  may  be  omitted,'  and  the  proceedings 
therefore  need  not  begin  with  the  handing  to  the  judge  of 
the  libelliis,  as  we  have  already  shown  in  treating  of  summary 
trials." 

1330.  Upon  receiving  and  examining  the  bill  of  complaint 
{libellus  conventionis),  the  judge,  if  he  finds  the  bill  legitimate, 
issues  the  citation  to  the  defendant,  so  that  the  latter  may 
receive  due  notice  of  the  plaintiff's  {actor)  demand.  The 
mode  of  issuing  and  executing  or  serving  the  citation,  in 
civil  causes,  is  substantially  the  same  as  in  criminal  causes, 
above  described.^  We  shall  therefore  abstain  from  explana- 
tions on  the  matter. 

1 33 1.  Contumacy  of  the  defendant. — If,  on  the  day  appointed 
in  the  citation,  the  defendant — who  is  called  reus  in  civil  as 
well  as  criminal  causes — does  not  appear,  he  is  accused,  for 
the  first  time,  of  contumacy  on  the  following  day,  unless  it 
be  a  Sunday  or  festival.  The  second  and  last  accusation  of 
contumacy  takes  place  three  days  after  the  first  accusation, 
when  the  defendant  lives  or  is  in  the  place  where  the  trial  is 
held  ;  and  two  months  if  he  is  out  of  the  territory  of  the 
judge;  and  one  month,  if  he  is  indeed  within  the  territory  of 
the  judge,  but  not  in  the  place  where  the  trial  takes  place.  If 
the  defendant  or  his  attorney  appears  within  the  time  fixed 
in  the  last  accusation  of  contumacy,  he  is  to  be  admitted,  and 
the  trial  proceeds.  But  if  nobody  appears,  the  defendant  is 
to  be  considered  and  condemned  as  in  contempt  of  the  court. 

1332.  Effects  of  the  condemnation  of  the  defejidant  for  con- 
tempt of  court,  or  contumacy,  in  civil  causes. — The  effects  of 
contumacy  in  civil  ecclesiastical  causes  resemble  in  m^ny 
particulars  the  effects  of  contumacy  in  criminal  causes. 
Hence  we  refer  the  reader  for  further  information  on  this 

'  Cf.  Miinchen,  1.  c,  vol.  i.,  p.  337,  n.  2.     *  Supra,  n.  1269.     '  Supra,  n.  998  sq. 


Ecclesiastical  Civil  Processes  or   Trials.         341 

matter  to  what  we  have  already  said  in  relation  to  the 
effects  of  contumacy  in  criminal  trials.'  From  the  principles 
there  laid  down,  it  follows  that  in  civil  no  less  than  in  crimi- 
nal causes,  whether  the  civil  trial  is  ordinary  or  extraordinary, 
the  case  cannot  be  decided  against  the  person  in  contempt, 
solely  because  he  is  in  contempt.  Nevertheless  as  in  crimi- 
nal so  in  civil  causes,  the  judge  has  a  right,  nay  the  duty,  if 
requested,  to  punish  the  contumacious  person  for  his  contu- 
macy. What  this  punishment  is  in  civil  causes  is  fully 
explained  by  Miinchen,''  to  whom  we  refer  the  reader. 

1333-  We  observe  here  that  the  formal  accusation  of  con- 
tumacy as  above  set  forth,'  is  necessary  only  when  the  civil 
trial  is  ordinary,  formal  or  solemn  {^processus  civilis  ordina- 
rius) ;  but  not  when  it  is  extraordinary,  informal  or  summary 
(^processus  civilis  siwtmarius).  For  in  the  latter  case  those 
formalities  need  not  be  observed.* 

1334.  When,  however,  the  defendant  obeys  the  citation, 
and  appears  in  court  on  the  day  fixed  in  the  citation,  a  copy 
of  the  bill  of  complaint  is  given  him  by  the  judge,  and  a 
space  or  term  of  twenty  days  allowed  him  to  deliberate 
whether  to  contest  the  case,  or  rather  comply  with  the  de- 
mands of  the  plaintiff.  To  expedite  matters,  the  judge  may 
insert  a  copy  of  the  bill  in  the  citation  itself,  and  require  the 
defendant  to  plead  when  he  appears  in  obedience  to  the  cita- 
tion.' 

1335.  The  defendant's  plea  or  general  answer  is  the  next 
step.  However,  before  entering  his  plea,  and  thus  effecting 
the  litis  contestatio,  the  defendant  is  at  liberty  to  propose 
whatever  exceptions  he  wishes  to  make.  We  remark  that 
the  same  principles  apply  to  exceptions  in  civil  causes  as  in 
criminal  causes.  Hence  it  is  not  necessary  to  repeat  here 
what  we  have  already  said,  when  speaking  of  exceptions  in 

'  Supra,  n.  1014-1024,  '  L.  c,  p.  321,  n.  1-7.  ^  Supra,  n.  1331. 

■*  Craiss.,  n.  6043.  '  Munchen,  1.  c,  p.  256,  n.  7. 


342        Ecclesiastical  Civil  Processes  or   Trials. 

criminal  causes.'  We  merely  observe  in  passing,  that  the 
making  of  exceptions,  whether  peremptory  or  dilatory,  does 
not  at  all  imply  any  confession  or  admission  on  the  part  of  the 
person  or  defendant  making  them.  For  a  person  has  a  per- 
fect right  to  make  exceptions  even  though  he  absolutely 
denies  the  position  or  allegations  of  his  opponent.  The  law 
of  the  Church  saj^s:  "  Exceptionem  objiciens,  nonvideturde 
intentione  adversarii  confiteri." ' 

1336.  Again,  we  remark  here  that  prescription  is  to  be 
counted  among  the  peremptory  exceptions.  As  such,  it  is 
defined  "  a  peremptory  exception,  by  which  the  possessor  in 
good  faith,  after  the  expiration  of  the  time  specified  by  law, 
can  repel  the  old  owner  who  demands  back  his  property,  or 
wishes  to  use  his  old  right."  '  Prescription  confers  a  valid 
title — that  is,  gives  full  ownership,  also  in  foro  conscicntia — 
provided  it  has  these  conditions:  i.  That  the  object  be  pre- 
scriptible  ;  2,  that  there  be  good  faith ; '  3,  and  also  continued 
possession,  4,  for  the  legitimate  space  of  time ;  5,  a  just  title. 

1337-  We  cannot  dwell  on  these  conditions  here.  The 
reader  will  find  them  fully  and  lucidly  explained  by  Schmalz- 
grueber."  We  can  only  remark,  that  by  a  "  just  title"  we  do 
not  mean  a  true  title  {iitulus  verus),  because  such  a  title  is 
sufficient  of  itself,  and  confers  ownership  without  any  pre- 
scription." A  colored  title  is  certainly  sufficient,'  but  is  not 
necessarily  required.  A  putative  title  is  sufficient,  provided 
it  is  reasonably  considered  a  title.*  We  remark  again,  that 
to  prescribe  against  the  real  estate  of  churches  and  pious 
places  forty  years  are  necessary  ;"  nay,  to  prescribe  against  the 
real  estate  of  the  Holy  See  one  hundred  years  are  required." 

1338.  The  defendant's  exceptions  must  be  communicated 

*  Supra,  n.  1026-1054. 

*  Reg.  63,  de  Reg.  jur.,  in  6°  (Bonif.  VIII.);  cf.  Miinchen,  1.  c,  p.  95. 

*  Craiss.,  n.  6046.      *  Cap.  5,  de  Praescr.  (ii.  26).      *  L.  2,  t.  26,  n.  23  sq. 

*  lb.,  n.  87.  '  Cf.  supra,  n.  222.  ^  Schmalzg.,  1.  c,  Resp.  3. 

«  Cap.  6,  8,  9,  de  Praescr.  (ii.  26).  '"Cap.  13,  14,  17  de  Praescr.  (ii.  26) 


Ecclesiastical  Civil  Processes  or   Trials.         343 

to  the  plaintiff,  so  that  he  may  refute  them  ;  and,  in  turn,  the 
plaintiff's  answer  to  the  defendant's  exceptions  is  communi- 
cated to  the  defendant  for  rebuttal,  and  so  on,  till  the 
parties  have  exhausted  their  arguments,  and  declare  them- 
selves ready  to  go  on  Vv-ith  the  main  cause.' 

1339.  All  these  proceedings — namely,  the  making  and 
proving  of  the  exceptions,  as  also  all  other  acts  or  steps 
which  take  place  prior  to  the  litis  contestatio — are  summary, 
even  when  the  trial  is  ordinary  or  solemn." 

1340.  After  these  preliminary  proceedings  follows  the 
plea  {litis  contestatio),  or  the  direct  though  general  answer  of 
the  defendant  to  the  plaintiff's  allegations.  It  consists  in  the 
defendant's  denial,  in  whole  or  in  part,  of  the  plaintiff's  bill 
of  complaint.  As  the  same  rules  govern  the  litis  contestatio, 
both  in  civil  and  criminal  causes,  we  refer  the  reader  to  what 
we  have  said  above  in  regard  to  the  litis  cotitestatio  in  crimi- 
nal causes.' 

1 341.  The  oath  of  calumnia,  where  still  in  use,  is  next 
administered,  and  that  not  only  to  the  principals, — i.e., 
plaintiff  and  defendant  in  person, — but  also  to  their  pro- 
curators and  advocates.  This  oath,  as  we  have  seen,  is 
no  longer  taken,  at  least  in  criminal  causes.*  Where  it 
still  obtains  in  civil  causes,  the  judge  can  oblige  the  parties 
to  take  it  only  when  the  opposing  party  insists  upon  its  being 
taken.  ' 

1342.  Next,  the  so-called  positions  {positiones)  and  an- 
swers thereto  {rcsponsiones  in  jure)  are  made  where  they  are 
still  in  use.^  For  further  information  on  this  head  we  refer 
the  reader  to  what  we  have  already  said  above,  as  the  prin- 
ciples there  laid  down  apply  also  to  positions  and  the  an- 
swers thereto  in  civil  causes.' 

1343.  Then  follows  the  real  trial — that  is,  the  demonstra- 

*  Munchen,  1.  c,  p.  259,  n.  9.     ^^  lb. ;  supra,  n.  1028.     ^  Supra,  n.  1064  sq. 

*  Supra,  n.  1077.  ^  Miinchen,  1.  c,  p.  224,  n.  5.  ^  lb.,  p.  266. 
■*  Supra,  n.  1070-1073.                        '  / 


344        Ecclesiastical  Civil  Processes  or   Trials, 

tion  or  proving  on  the  part  of  the  plaintiff  of  the  main  cause 
or  issue,  and  the  rebuttal  by  the  defendant  of  the  former's 
proofs  and  arguments.  These  proceedings  are  therefore 
called  probative  proceedings,  being  held  for  the  purpose  of 
establishing  by  proper  proofs  the  main  or  real  points  at  issue, 
as  fixed  by  the  bill  of  complaint,  plea,  and  positions.  This 
whole  procedure,  therefore,  consists  in  the  judge's  hearing 
and  receiving  or  admitting  whatever  testimony  or  proof  is 
produced  both  by  the  plaintiff  and  the  defendant.  As  in 
criminal  so  also  in  civil  causes,  the  burden  of  proof  rests 
upon  the  plaintiff.  He  is  therefore  first  called  upon  to  prove 
his  case.  His  proofs — namely,  depositions  of  witnesses,  doc- 
uments, letters,  etc. — must  be  communicated  to  the  defend- 
ant, who  is  thus  enabled  to  prepare  for  his  defence,  and  to 
defend  himself  properly.  As  the  rules  which  apply  to  the 
examination  of  the  witnesses,  and  other  proofs  in  civil  causes, 
are  substantially  the  same  as  in  criminal  causes,  which  we 
have  already  fully  described,'  we  deem  it  superfluous  to  re- 
peat them  here. 

1344.  The  swearing  of  witnesses  is  necessary  also  in  civil 
trials  (we  speak,  of  course,  always  of  civil  trials  in  ecclesias- 
tical courts).  Here  we  may  be  pardoned  for  digressing 
somewhat,  and  asking  whether,  according  to  the  civil  laws  of 
the  United  States,  it  is  unlawful  for  an  ecclesiastical  judge 
to  administer  the  oath  to  witnesses — i.e.,  make  them  depose 
under  oath  in  ecclesiastical  trials,  whether  civil  or  criminal. 
We  think  not.  We  have  consulted  very  able  lawyers  on  this 
point,  and  their  answer  is,  that  while  the  State,  with  us,  does 
not  formally  recognize  such  swearing  of  witnesses,  nor  give 
it  any  civil  effect,  yet  it  does  not  forbid  it,  or  make  the  act 
in  any  sense  illegal.  The  State,  with  us,  simply  authorizes 
certain  persons  to  administer  oaths.  To  oaths  alone  which 
are  administered  by  such  persons,  it  gives  effect  by  enacting 

'  Supra,  n.  1115  sq. 


Ecclesiastical  Civil  Processes  or   Trials.         345 

that  if  any  person  shall  wilfully  and  corruptly  swear  or 
affirm  falsely,  he  shall  be  deemed  guilty  of  perjury  and  pun- 
ished accordingly.'  Hence  an  oath  administered,  with  us, 
by  an  ecclesiastical  judge  is  not  illegal,  but  simply  not  pun- 
ishable as  perjury  if  taken  falsely. 

1345.  In  England  and  Ireland  the  case  seems  different, 
even  at  the  present  day.  For,  as  appears  from  the  testimony 
in  the  famous  trial  of  the  Rev.  Robert  O'Keefe,  P.P.  v.  His 
Eminence  Cardinal  Cullen,  the  swearing  of  witnesses  by  the 
ecclesiastical  judge  seems  illegal,  and  positively  forbidden 
by  the  law  of  the  land.  Thus  the  Most  Rev.  Dr.  Leahy, 
Archbishop  of  Cashel,  being  examined  for  the  defence,  and 
asked,  "  Now,  in  proceeding  in  canon  law,  must  not  wit- 
nesses be  sworn  ?"  answered  thus  :  "  Yes,  that  is  one  of  the 
formalities,  and  it  is  because  witnesses  cannot  be  sworn  in 
such  a  proceeding  in  this  country  that  an  ordinary  judicial 
proceeding  is  impossible."  This  opinion  seems  to  have  been 
endorsed  by  Mr.  Carton,  the  eminent  lawyer  who  examined 
Archbishop  Leahy.  For,  in  the  question  immediately  fol- 
lowing the  above,  he  says :  "  The  swearing  of  witnesses 
being  illegal  in  this  country,"  etc.''  Hence,  also,  the  trial  as 
prescribed  by  the  First  Synod  of  Westminster  in  1852,  which 
was  taken  by  the  Propaganda  as  the  model  for  its  Instruc- 
tion of  July  20,  1878,  for  this  country,  ordains  that  witnesses 
shall  not  be  sworn.'  This  feature  was  retained  in  the  above 
Instruction  of  the  Propaganda  for  the  United  States. 

1346.  Let  us  now  return  to  our  subject.  As  the  deposi- 
tions of  the  witnesses  for  the  plaintiff  are  made  known  to  the 
defendant  for  his  defence,  so  those  of  the  witnesses  for  the 
latter  are  also  communicated  to  the  plaintiff  for  rebuttal  or 
repulsa  repulsae ;  and  in  turn,  the  rebuttal  testimony  of  the 
latter's  witnesses  is  disclosed  to  the  defendant  for  his  further 

'  Revision  of  the  Statutes  of  New  Jersey,  p.  740,  sec.  3.     Trenton,  1877. 
*  Trial  of  O'Keefe  v.  Card.  Cullen,  p.  505.     London,  1874. 
^  Coll.  Lacens.,  vol.  iii.,  p.  960. 


34^         Ecclesiastical  Civil  Processes  or   Trials. 

defence.  This  is  based  on  the  general  principle,  that  in  eccle- 
siastical trials  (as  in  secular  trials)  no  ex  parte  or  one-sided 
proceedings  are  allowed ;  but,  on  the  contrary,  each  party 
must  be  fully  informed  of  the  steps,  testimony,  and  proceed- 
ings of  the  other  party.  Of  this  there  can  be  no  doubt.  The 
only  dispute  which  exists  on  this  head  is  as  to  how  this  infor- 
mation must  be  imparted.  Thus,  as  we  have  seen,  it  may  be 
disputed  as  to  whether  the  contending  parties  can  be  con- 
,  fronted  with  the  witnesses,  during  the  latter's  examination. 
But,  in  any  case,  all  canonists  agree  that  the  party  must  be 
informed  of  the  depositions  of  the  witnesses,  even  where  he 
is  not-confronted  with  them. 

1347.  Hence  also,  in  the  United  States,  in  trials  before 
Commissions  of  Investigation,  as  in  fact  in  any  other  judicial 
procedure,  the  same  rule  holds.  Where  therefore,  also  with 
us,  a  defendant,  for  instance,  is  not  allowed  to  be  present 
at  the  examination  of  the  witnesses  for  the  prosecution  {pro 
causa),  or  bishop's  official,  the  depositions  must  be  communi- 
cated to  him  in  writing. 

1348.  When  the  parties  have  exhausted  their  proofs  and 
arguments  the  case  is  closed — that  is,  no  further  taking  of 
testimony  is  permitted,  lest  otherwise  litigations  become  im- 
mortal and  endless.  Thereupon,  on  a  day  fixed  by  the  judge, 
the  parties  either  personally  or  by  their  advocates  are  allowed 
to  make  final  speeches  or  to  sum  up  the  case.'  Then  the 
judge  takes  all  the  papers  or  acts  and  documents  of  the  trial, 
— namely,  the  deposition  of  the  witnesses,  the  minutes  of  the 
proceedings,  etc., — so  that,  having  carefully  examined  and 
studied  them,  he  may  be  able  to  pronounce  a  just  sentence. 
A  day  is  then  appointed  by  the  judge  for  the  pronouncement 
of  sentence,  and  the  parties  are  to  be  cited  to  be  present  to 
hear  it.  Finally,  on  the  day  fixed,  sentence  is  pronounced 
by  the  judge  in  the  presence  of  the  parties. 

'  MUnchen,  1.  c,  p.  283. 


Ecclesiastical  Civil  Processes  or  Trials.  347 


Art.  II. 

Of  the  Extraordinary  and  Summary  Trial  in  Civil  Causes  of 
the  Ecclesiastical  Forum,  also  in  the  United  States  {De  Pro- 
cessu  Extraor dinar io  et  Summario  Ecclesiastico,  in  Materia 

Civ  Hi). 

1349.  So  far  we  have  traced  out  in  the  preceding  article 
the  mode  of  procedure  in  ordinary  or  regular  civil  trials 
[processus  civilis  ordinarius  sen  solemnis)  in  the  ecclesiastical 
forum.  We  come  now  to  the  extraordinary  and  summary 
mode  of  procedure  or  trial  in  civil  causes  falling  under  the 
ecclesiastical  forum.  It  is  scarcely  necessary  to  remark  here, 
that,  as  in  criminal,  so  also  in  civil  causes  or  matters  of  the 
ecclesiastical  forum,  there  is  both  an  ordinary  or  regular 
(called  also  formal  and  solemn),  and  an  extraordinary  or  sum- 
mary trial  or  mode  of  procedure.'  Nay,  there  are  several 
extraordinary  and  summary  trials  for  ecclesiastical  civil 
causes.  One  is  for  summary  causes  in  general,  and  is  the  one 
which  is  ordinarily  made  use  of  when  a  cause  is  tried  sum- 
marily. Of  this  trial  we  shall  speak  in  this  article.  The 
others  are  the  peculiar  summary  modes  of  procedure  in 
matrimonial  causes,  the  proceedings  in  petitorio,  posscssorio, 
in  actione  spolii,  etc."  Of  the  peculiar  summary  process  in 
matrimonial  causes  we  shall  speak  below  in  a  separate  article. 

1350.  The  summary  trial,  of  which  we  here  speack,  and 
which  is  the  one  established  for  civil  causes  in  general,  is 
clearly  explained  in  the  Clem.  Saepe ;  and  the  causes  which 
can  be  adjudicated  summarily  are  set  forth  in  the  Clem.  Dis- 
pendiosam.  We  have  already,  at  length,  dwelt  upon  these 
summary  trials  above. ^  There  we  have  also  shown  that 
criminal  causes  cannot  be  tried  summarily  ;  that  only  certain 
specified  civil  causes  can  be  adjudicated  modo  summario.     As 

'  Munchen,  1.  c,  p.  232.  «  lb.,  p.  345-362.  ^  Supra,  n.  1265  sq. 


348        Ecclesiastical  Civil  Processes  or   Trials. 

we  have  already  fully  explained  this  mode  of  procedure,  it  is 
not  necessary  to  repeat  here  what  we  said  above.'  It  may, 
however,  be  proper  to  subjoin  a  few  remarks  here  concern- 
ing the  trial  or  mode  of  procedure  for  civil  causes,  in  general, 
in  the  United  States. 

135 1.  Mode  of  procedure  in  civil  causes  in  the  United  States. — 
It  is  plain  that  civil  causes,  with  us,  cannot,  at  least  practically 
speaking,  be  tried  in  the  formal  or  solemn  manner  described 
in  the  preceding  article.  Nay,  it  were  difficult,  practically 
speaking,  to  observe  in  these  causes  even  all  the  formalities 
of  a  canonical  summary  trial.  What  then  is  the  peculiar 
summary  mode  of  procedure  which  can  be  practically  fol- 
lowed, in  the  adjudication  of  civil  causes,  in  our  country  ? 
On  July  20,  1878,  the  Sacred  Congregation  de  Prop.  Fide 
issued  the  oft-quoted  Instruction  for  the  United  States,  pre- 
scribing a  certain  form  of  trial  before  a  Commission  of  Inves- 
tigation to  be  established  in  every  diocese.  This  form  of 
trial,  as  was  expressly  declared  by  this  same  Sacred  Congre- 
gation, in  its  supplemental  Instruction  or  answer  Ad  Diibia, 
is  obligatory  in  all  cases  where  an  ecclesiastical  penalty  or 
censure  or  a  grave  disciplinary  correction  is  to  be  inflicted. 
In  other  words,  the  above  trial  is  obligatory  in  criminal  and 
the  above  disciplinary  causes  of  ecclesiastics. 

1352.  That  this  mode  of  procedure  w«j  also  be  followed 
in  ecclesiastical  civil  causes  of  ecclesiastics,  seems  beyond 
doubt ;  nay,  it  seems  plainly  the  desire  of  the  Holy  See  that 
it  shall  be  so  followed,  as  appears  clearly  from  the  whole 
tenor  of  the  said  Instruction  of  the  Propaganda.  Thus  the 
Instruction  says  that  it  shall  be  the  chief  duty  and  office 
(note  well,  it  does  not  say  "  the  duty  and  office,"  or  "  the  only 
duty  and  office")  of  the  Commission  to  hear  and  try  criminal 
and  disciplinary  causes  of  ecclesiastics.  The  words  of  the 
Instruction   are :    "  Commissionis   ita  constitutae   PRINCEPS 

'  Supra,  n,  1265-1279. 


Ecclesiastical  Civil  Processes  or  Trials.  349 

erit  officium  criminales  atqiie  disciplinares  presbyterorum 
aliorumque  clericorum  causas  ...  ad  examen  revocare,  rite 
cognoscere,  etc."  '  And  a  little  further  on  the  same  Instruc-, 
tion  says :  "  In  causis  cognoscendis,  iis  PRAESERTIM,  in  quibus 
de  rectore  .  .  .  amovendo  aglatur,  judicialis  commissio  hanc 
sequetur  agendi  rationem.'"' 

1353.  Hence  the  Sacred  Congregation  plainly  intimates 
and  tacitly  recommends  that  the  Commission  should  also  be 
convened  to  hear  and  try  other  than  purely  criminal  and  dis- 
ciplinary causes — namely,  civil  causes.  This  would  also  seem 
to  follow  from  the  fact  that  in  canon  law  civil  causes  of  great 
importance  are  placed  on  an  equal  footing  with  criminal 
causes.  Moreover,  the  very  phrase  "  disciplinary  causes" — 
causae  disciplinares — used  in  the  above  Instruction  seems  to 
confirm  what  we  have  just  said.  For  it  is  evident  that  in 
nearly  every  civil  cause  of  an  ecclesiastic  points  of  ecclesias- 
tical discipline  will  be  more  or  less  involved.  Hence  it  may 
be  said  that  most  civil  causes  of  ecclesiastics  are  in  some 
sense  also  disciplinary  causes.  Of  course,  a  few  slight 
changes  in  the  formalities  of  the  trial  would  become  neces- 
sary by  the  very  nature  of  the  case. 

Art.  III. 

Remedies  against  an  unjust  Sentence  in  Civil  Causes —  Whether 
and  hozv  Civil  Causes  differ  from  Criminal,  so  far  as  the 
Remedies  against  an  unjust  Sentence  are  concerned— Of 
Appeals,  Complaint  of  Nullity,  Supplication,  and  Reinstate- 
ment. 

1354.  Before  discussing  the  special  mode  of  procedure  or 
form  of  trial  peculiar  to  certain  kinds  of  civil  causes  per- 
taining to  the  ecclesiastical  forum, — namely,  matrimonial 
causes, — it  seems  proper  to  say  a  few  words  on  the  mode  of 

'  Instr.  cit.,  §  Commissionis  ita.  *  Instr.  cit.,  §  In  causis. 


350        Ecclesiastical  Civil  Processes  or   Trials. 

redress  against  an  unjust  sentence.  There  are  chiefly  three 
such  remedies — namely,  appeals,  complaint  of  nullity,  and 
reinstatement.  The  two  first  are  called  ordinary  remedies  ; 
the  third  an  extraordinary,  because  it  can  or  should  be  used 
only  when  the  two  others  are  of  no  avail. 

§  I.  Of  Appeals^  and  the  Complaint  of  Nullity  in  Civil  Trials  or 
Causes  of  the  Ecclesiastical  Forum. 

1355-  !•  Of  appeals. — The  rules  which  apply  to  and  govern 
appeals  in  civil  causes  or  trials  are  the  same  as  those  which 
govern  appeals  in  criminal  causes.  Hence  what  we  have 
said  above '  concerning  appeals  in  criminal  causes  applies  also 
to  appeals  in  civil  causes,  and  therefore  need  not  be  repeated 
here.  We  pass  on,  consequently,  to  the  second  remedy — 
the  complaint  of  nullity. 

1356.  II.  Complaint  of  nullity  of  sentence. — Complaints  of 
nullity,  like  appeals,  are  allowed  both  in  criminal  and  civil 
causes.  What  has  been  remarked  as  to  the  rules  governing 
civil  and  criminal  appeals  alike,  holds  also  of  complaints  of 
nullity.  In  other  words,  the  same  rules  and  principles  which 
apply  to  and  govern  complaints  of  nullity  in  criminal  causes, 
apply  to  and  govern  complaints  of  nullity  in  civil  causes. 
As  this  remedy  is  of  great  importance,  and  has  been  but  cur- 
sorily and  incidentally  touched  upon  above  (in  the  chapter  on 
criminal  trials),  we  shall  here  explain  it  more  fully. 

1357.  By  the  complaint  of  nullity  of  sentence  {querela 
nullitatis  sententtae)  is  here  meant  the  legitimate  or  proper 
alleging  and  proving  that  the  sentence  pronounced  by  the 
judge  is  ipso  jure  null  and  void.*  Now  a  sentence  can  be  void 
ipso  jure  in  various  ways,  namely:  i.  By  reason  of  defects*  in 
the  judge — namely,  if  he  is  publicly  excommunicated ;  if  he 
is  infamous ;  if  he  is  a  layman,  and  the  cause  is  ecclesiastical ; 
if  he  has  no  jurisdiction  in  the  case,  or  exceeds  the  limits  of 

'  Supra,  n.  444  sg..;  vol.  i.,  p.  425.  *  Reiff.,  1.  2,  t.  28,  n.  23. 


Ecclesiastical  Civil  Processes  or  Trials.         351 

his  delegation,  in  case  he  is  a  delegated  judge.  2.  By  reason 
of  the  litigants  themselves — v.g.,  if  the  sentence  is  pronounced 
on  an  exempt  person,  or  on  a  minor  {i.e.,  one  who  has  not  yet 
completed  his  twenty-fifth  year)  who  entered  upon  the  litiga- 
tion without  the  consent  of  his  guardian  ;  when  the  sentence 
is  in  favor  (not  if  it  is  against  him)  of  a  plaintiff  who  is  ex- 
communicated and  denounced  as  such.  3.  By  reason  of  the 
place — v.g.,  is  pronounced  out  of  the  territory  of  the  judge. 

1358.  4.  By  reason  of  the  time — v.g.,  if  it  is  pronounced  at 
night,  or  on  a  festival,  or  on  a  day  other  than  that  appointed 
for  the  parties  by  the  judge.  5.  By  reason  of  the  sentence 
itself — v.g.,  if  it  is  neither  condemnatory  nor  absolutory.  6. 
By  reason  of  the  manner  in  which  sentence  is  pronounced — 
v.g.,  if  the  judge  passes  sentence,  not  in  writing ;  or  if  he  pro- 
nounces it  in  a  standing,  not  a  sitting  posture  (except  where 
he  proceeds  summarily).  7.  By  reason  of  the  proceedings 
or  trial — i.e.,  by  reason  of  any  substantial  formality  being 
omitted ; '  v.g.,  if  sentence  is  pronounced  against  a  person  not 
cited  for  trial,  or  after  an  appeal  has  been  lawfully  made,  or 
without  any  litis  contestatio,  in  causes  where  the  latter  is  re- 
quired. 8.  By  reason  of  its  manifest  injustice — v.g.,  if  it  is 
pronounced  in  express  opposition  to  the  law,  or  contains  a 
clear  error.° 

1359.  How  is  the  complaint  of  nullity  {pppositio  ntillitatis) 
to  be  made  ?  Considering  the  letter  of  the  law  of  the 
Church,  it  can  be  addressed  both  to  the  superior  or  judge  of 
appeal,  and  to  the  judge  himself  who  passed  the  sentence, 
provided  the  latter  is  an  ordinary  judge.  We  say,  an  ordi- 
nary Judge ;  for  a  delegated  judge,  once  he  has  pronounced 
sentence,  whether  right  or  wrong,  is  functus  officio,  ceases  to 
have  any  further  jurisdiction  in*  the  matter,  and  therefore 
cannot  reverse  his  invalid  sentence.*     We  said  "  considering 

'  Supra,  n.  1170,  1186. 

*  Reiff.,  1.  2,  t.  28,  n.  23;  Bouix,  de  Jud.  eccl.  vol.  ii.,  p.  406. 

^  Cap.  In  litteris  9,  de  off.  jud.  del.  (i.  29). 


352        Ecclesiastical  Civil  Processes  or   Trials. 

the  letter  of  the  law ;"  for  by  custom  now  everywhere  pre- 
valent, and  consequently  having  the  force  of  common  law, 
the  complaint  of  nullity  of  sentence  is  now  to  be  referred  to 
and  adjudicated  upon  by  the  judge  of  appeal,  who,  as  is  evi- 
dent, is  better  qualified  to  reverse  an  invalid  sentence  than 
the  judge  himself  by  whom  it  was  pronounced.' 

1360.  The  complaint  of  nullity  can,  as  a  rule,  be  made  at 
any  time  within  thirty  years  from  the  date  of  sentence,  but 
not  beyond  that  period,  as  every  action  or  suit  is  prescribed 
against  by  the  space  of  thirty  years.  We  say,  "as  a  rule;" 
the  exceptions  are  :  i.  If  the  nullity  of  sentence  is  proposed 
as  an  exception  ;  since  exceptions  are  perpetual.  2.  If  the  act 
is  ipso  jure  void.  3.  If  the  nullity  proceeds  from  a  defect  of 
jurisdiction  or  mandate.  4.  Where  statute  or  custom  dis- 
poses otherwise."  5.  Where  the  salvation  of  souls  is  endan- 
gered." 

1 361.  Chief  differences  between  complaints  of  nullity  a7id  ap- 
peals proper. — From  what  has  been  said,  it  is  evident  that  the 
complaint  of  nullity  differs  in  various  ways  from  appeals. 
We  shall  only  mention  one  or  two  additional  differences : 
I.  Appeals  can  be  made  only  ten  days  after  the  sentence  ; 
complaints  of  nullity  for  thirty  years.  2.  Again,  appeals  are 
made  against  a  sentence  when  it  is  unjust,  though  valid  ; 
complaints  of  nullity,  against  a  sentence  when  it  is  invalid, 
not  merely  unjust."  In  fact,  as  we  have  already  seen,  when 
a  sentence  is  ipso  jure  null  and  void,  no  appeal  is  necessary, 
since  the  sentence  has  no  effect  whatever,  has  no  legal  exist- 
ence, and  therefore  need  not,  in  fact  cannot  (as  it  does  not 
exist  legally),  be  revoked  upon  an  appeal."  In  such  a  case, 
therefore,  it  is  sufficient  to  allege  and  prove  the  nullity  of 
sentence  or  to  make  the  querela  nullitatis. 

1362.  On  the  other  hand,  appeals  and  complaints  of  nullity 

'  Bouix,  1.  c,  p.  411.  *  Bouix,  1.  c,  p.  411. 

^  Reiff.,  1.  2,  t.  27,  n.  115,  137.  *  MUnchen,  I.  c,  pp.  512,  586. 

*  L.  Si  expressim  19  ff.  de  Appell.  (49.  i). 


Ecclesiastical  Civil  Processes  or  Trials.         353 

agree  in  this,  that  they  are  modes  of  redress,  which  are 
granted  by  the  law,  not  as  a  matter  of  favor,  but  as  a  matter 
of  right ;  while,  v.g.,  the  supplicatio  is  a  redress,  granted  by 
way  of  favor.  Finally,  we  remark,  that,  v.g.,  where  there  is 
a  doubt  whether  the  case  admits  of  the  complaint  of  nullity 
or  of  appeal,  the  complaint  of  nullity  may  be  made  conjointly 
with  an  appeal,  in  this  manner :  I  charge  that  the  sentence 
is  null  and  void,  and  if  it  is  perhaps  valid,  I  appeal.  In  the 
Roman  or  civil  law,  there  was  no  other  remedy  against  in- 
valid sentences  than  appeals;  the  complaint  of  nullity  being 
of  ecclesiastical  origin.'  ^ 

§  2.  Supplication  or  Petition  for  a  new  hearing  of  the  Cause 

{Supplicatio). 

1363.  Against  a  final  sentence  which  is  pronounced  by  a 
judge  who  is  supreme  and  has  no  superior  on  earth, — v.g.,  the 
Pope,  the  entire  College  of  Cardinals,  the  various  Roman 
Congregations," — no  appeal,  properly  speaking,  can  be  made. 
For  an  appeal  lies  only  from  an  inferior  to  a  superior 
judge.  However,  while  such  a  sentence  is  inappealable,  yet 
there  is,  and  justly  so,  since  even  supreme  judges  may  err, 
a  legal  means  of  redress  even  against  the  sentences  in  ques- 
tion when  the  party  feels  aggrieved  by  them.  This  remedy 
is  none  other  than  a  supplication  or  humble  petition  {sup- 
plicatio) addressed  by  the  aggrieved  party  to  the  highest 
superior — to  the  Pope,  so  far  as  ecclesiastical  causes,  of 
which  we  here  speak,  are  concerned — for  a  new  hearing  in 
the  case.' 

1364.  Hence  this  mode  of  redress,  as  here  understood,  or 
as  applied  to  contentious  causes,  is  correctly  defined  to  be  the 
prayer  or  petition  of  the  aggrieved  party  addressed  to  the 
supreme  judge, — namely,  the  Pope, — setting  forth  the  griev- 

'  Miinchen,  1.  c,  p.  587.  ^  Supra,  n.  450. 

*  Miinchen,  1,  c,  vol.  i.,  p.  568,  n.  i. 


354        Ecclesiastical  Civil  Processes  or   Trials. 

ances  inflicted  by  the  sentence,  against  which  the  ordinary 
remedy  of  appeal  is  of  no  avail,  and  humbly  asking  him,  as  a 
matter  of  pure  favor  and  kindness,  to  review  and  reverse  such 
sentence/  The  object,  therefore,  of  a  supplication  is  the 
same  as  that  of  an  appeal — namely,  to  obtain  a  new  trial.  In 
fact,  while  a  supplication  differs  from  an  appeal,  it  neverthe- 
less greatly  resembles  it." 

1365.  Principal  differences  between  supplications  and  appeals. 
— I.  Supplications  are  allowed  in  all  causes  and  matters,  civil 
and  criminal,^  and,  as  we  have  seen,  against  sentences  of  the 
supremp  judge  which  do  not  admit  of  appeals ;  whereas 
appeals  are  not  so  universal  a  means  of  redress.*  2.  Appeals 
must  be  made  within  ten  days  ;  supplications  can  be  made 
within  two  years  from  the  time  the  sentence  complained  of 
was  pronounced."  3.  An  appeal  is  addressed  to  the  superior 
or  higher  judge :  a  supplication  usually  to  the  same  judge 
who  passed  the  sentence,  and  who,  being  supreme,  cannot 
be  appealed  from.  4.  The  appeal  is  an  ordinary  remedy, 
and  given  by  the  law  as  a  right ;  the  supplication  an  extra- 
ordinary remedy,  and  granted  only  as  a  favor  by  the  Pope.^ 
5.  Finally,  in  the  making  of  appeals  various  formalities 
(already  described)  must  be  observed ;  in  supplications  the 
proceedings  are  altogether  informal.' 

1366.  Q.  What  is  the  mode  of  petitioning  the  Sacred 
Congregations  of  Rome  for  a  new  hearing  of  a  cause  when 
such  a  cause  has  already  been  once  decided  by  them  ? 

A.  We  premise:  All  canonists  agree  that  there  is  no 
appeal  from  a  decision  given  by  one  of  the  Sacred  Congre- 
gations at  Rome — v.g.,  by  the  S.  C.  C,  or  of  the  Council  of 
Trent,  or  by  the  S.  C.  Ep.  et  ^^Z-,  ^"^  by  the  S.  C.  de  Prop. 

'  Schtnalzg.,  1.  2,  t.  28,  n.  2.  *  lb. 

3  Glossa,  in  cap.  68,  v.  De  Inquisitionis  (ii.  28).  *  Reiff.,  1.  2,  t.  28,  n.  22. 

*  L.  unic.  C.  de  Sent,  praef.  praet.  (vii.  42). 

*  Arg.  1.  I,  2,  3,  4,  5,  6,  C.  de  Prec.  imp.  off.  (i.  19). 
'  Miinchen,  1.  c,  p.  570,  n.  3. 


Ecclesiastical  Civil  Processes  or  Tibials.         355 

Fide.  For  these  Sacred  Congregations  or  Standing  Com- 
mittees of  Cardinals  are  supreme  tribunals,  vested  with  papal 
authority  ;  consequently  their  decrees  are  just  as  inappealable 
as  though  they  had  been  made  by  the  Pope  himself.  Yet 
when  there  is  question  of  decisions  rendered  by  them  in  a 
contentious  cause  or  matter,  these  Sacred  Congregations 
always  grant  a  new  hearing  or  trial,  or  review  of  the  case. 
And  in  this  new  hearing,  which  takes  place  before  the  same 
Sacred  Congregation  by  which  the  first  decision  was  given, 
the  parties  can  again  submit  their  arguments,  proofs,  etc., 
just  as  though  they  were  before  a  tribunal  or  judge  of  appeal. 
Nay,  these  Sacred  Congregations  grant  such  new  hearing 
or  trial  not  only  once  but  several  times  in  the  same  cause  or 
matter.' 

1367.  There  are  only  two  cases  where  such  new  heanng 
is  refused— namely,  i,  where  the  request  for  the  new  hear- 
ing is  manifestly  based  upon  frivolous  motives ;  2,  where  a 
Sacred  Congregation  adds  to  its  decision  in  a  case  the  phrase 
et  anipliiis.  In  this  latter  case  it  is  not  allowed  to  ask  for  a 
new  hearing  of  the  cause,  except  upon  obtaining  from  the 
Cardinal  Prefect  of  the  respective  Congregation  a  rescript 
giving  permission  to  do  so.  The  words  ct  amplius  are  the 
first  words  of  the  formula,  whose  last  words  are  causa  non 
proponatur.  This  latter  part  is  always  understood,  though 
only  the  first  words — namely,  et  amplius — are  expressed  in 
the  decree.  Hence  by  this  phrase  the  Sacred  Congregation 
means  that  it  has  unanimously  decided  the  matter,  and  so 
thoroughly  examined  it,  that  it  will  consider  any  demand  for 
a  new  hearing  as  frivolous.''  , 

1368.  We  now  answer:  The  supplication  for  the  new  hear- 
ing should  be  made  to  the  Sacred  Congregation  (with  us,  to 
the  Propaganda)  by  means  of  an  humble  petition,  setting  forth 
clearly  and  specifically  the  reasons  upon  which  the  request 

'  Stremler,  1.  c,  p.  424.  '  lb.,  1.  c,  p.  425. 


356        Ecclesiastical  Civil  Processes  or   Trials. 

is  based.  The  petition  should  be  presented  at  the  office  of 
the  secretary  of  the  Sacred  Congregation  to  which  the  sup- 
plication is  addressed.  It  may  also  be  sent  by  letter  to  the 
Cardinal  Prefect  of  the  Congregation.  It  should  be  ad- 
dressed directly  to  the  Holy  Father,  thus :  Bcatissime  Pater. 
In  contentious  matters,  the  only  satisfactory  way  of  conduct- 
ing supplications,  appeals,  etc.,  is  through  one  of  the  procu- 
rators who  are  officially  recognized  as  such.* 

1369.  Finally,  we  remark,  that  the  recourse  which  lies  to 
the  Holy  See  against  sentences  ex  inforniata  conscientia  par- 
takes of  the  nature  of  a  supplication,  as  here  described.  For 
there  is  no  appeal  against  such  sentences,  but  only  a  suppli- 
cation to  the  Holy  See  (with  us,  to  the  Propaganda)  for  a 
new  hearing. 

§  3. — {a).  The  referring  of  a  Cause  by  an  Inferior  Judge  to  the 
Superior  Judge  {De  Relationibus). 

{b).  Consult  at  io7is  addressed  by  an  Inferior  Judge  to  his  Superior, 
for  Information  to  guide  him  in  deciding  a  Cause — Consulta- 
tions addressed  by  Bishops  to  the  Holy  See. 

1370.  Here  we  will  briefly  explain  another  means,  or 
rather  quasi-means,  of  redress,  namely,  the  referring  {relatio) 
of  a  cause  by  the  inferior  judge — v.g.,  bishop — to  the  Pope, 
whenever  he  is  in  doubt  as  to  the  law  applying  to  the  cause, 
with  the  request  for  information  as  to  the  law  which  he  is  to 
follow  in  adjudicating  the  case."  It  is,  therefore,  a  request 
made  by  an  inferior  judge  who  is  in  doubt  on  the  law  apply- 
ing to  a  case,  addressed  to  the  superior,  to  be  instructed  as  to 
what  rules  he  should  follow  in  deciding  the  case.  We  say, 
"  who  is  in  doubt  about //a:^  law  ;''  for  this  canonical  reference 
or  consultation  can  take  place  only  when  the  inferior  judge 
entertains  doubts  on  points  of  law  (in  our  case,  of  canon  law), 
on  account  of  its  difficulty  or  ambiguity,  but  not  when  he  is 

'  Stremler,  I.e.,  p.  609.      ^  Schmalzg ,  1.  2,  t.  28,  n.  147;  Reiff.,  1.  2,  t.  2S,  n.  329. 


Ecclesiastical  Civil  Processes  or  Trials.         357 

uncertain  as  to  the  facts  in  the  case ;  since  he  is  bound  to 
inquire  for  himself  as  to  the  truth  or  existence  of  all  ques- 
tions of  fact  in  a  cause.  Nevertheless,  he  is  obliged  in  his 
consultation  to  state  the  whole  case,  not  only  as  to  its  law, 
but  also  facts,  so  that  the  Pope  may  fully  understand  the 
cause  in  all  its  bearings.' 

1 37 1.  How  is  this  consultation  to  be  addressed  by  the  in- 
ferior ecclesiastical  judge — v.g.,  bishop — to  the  Pope  ?  i.  The 
inferior  judge,  in  his  request  or  consultation,  should  give  a 
full  and  complete  statement,  either  of  the  whole  case,  if  the 
doubt  extends  to  the  whole  case,  or  of  the  particular  part  of 
it  which  is  the  cause  of  the  doubt,  together  with  all  the  cir- 
cumstances and  facts  in  the  case,  and  also  the  allegations  of 
both  the  contending  parties.''  2.  Where  the  doubt  is  as  to 
the  whole  case,  the  minutes  and  acts  of  the  entire  proceed- 
ings should  be  sent  to  the  Pope  with  the  consultation  ;  where 
the  doubt  extends  but  to  part  of  the  case,  only  those  min- 
utes and  acts  which  relate  to  such  part  need  be  sent."  3.  The 
inferior  judge,  before  sending  his  consultation  to  Rome, 
must  give  the  litigants — both  plaintiff  and  defendant — a  copy 
of  such  consultation,  so  that  they  may  appeal  or  object 
against  the  manner  in  which  the  cause  is  stated  ;  and  their 
appeal  or  objections  must  be  filed  among  the  acts  of  the 
case  and  forwarded  to  Rome  together  with  the  consultation.^ 
The  object  of  this  is  to  prevent  the  inferior  judge  from  pre- 
senting an  ex-parte  statement,  or  suppressing  the  truth  and 
stating  untruths." 

1372.  The  effect  of  this  formal  and  canonical  consultation 
is  that,  pending  this  reference  to  the  Pope,  the  jurisdiction 
of  the  judge  referring  the  case  is  suspended,  just  as  in 
appeals  proper,  so  that  he  cannot  do  anything  whatever  in 
the  case  until  the  superior  who  has  been  consulted  has  given 

»  L.  I,  C.  de  Relat.  (vii.  6i). 

2  L.  Si  qiiis  i,  C.  de  Relat.  (vil.  6i).  '  lb.,  at  1.  3,  eod. 

4  Cap;  Intimasti  68,  de  Appell.  (ii.  28).  *  Schmalzg.,  1.  c,  n.  151. 


358  Ecclesiastical  Civil  Processes  or  Trials. 

his  reply/     We  need  scarcely  say  that  this  remedy  obtains 
in  civil  and  criminal  causes. 

1373.  At  the  present  day  this  reference  of  a  cause  is  no 
onger  in  use.  In  its  place  has  succeeded  a  simple  consulta- 
tion {consult atio).  Thus,  bishops  and  others  now  frequently 
consult  the  Holy  See  when  they  are  in  doubt  as  to  the  mean- 
ing, force,  and  extent  of  a  law.  However,  it  must  be  ob- 
served that  this  consultation  must  be  strictly  confined  to 
questions  of  law,  and  should  not  extend  to  its  application  in 
a  particular  cause.  For  where  there  is  question  of  applying 
the  law  to  contending  parties,  the  Holy  See  will  not  give  an 
answer  unless  all  the  parties  have  been  heard  from.'^ 

§  4.  Of  Reinstatement  {De  in  Integrum  Restitutione). 

1374.  To  reinstate  a  person  {restituere  in  integrum),  speak- 
ing in  general,  means  to  place  him  again  in  a  former  state,  or 
restore  him  to  a  condition  from  which  he  had  been  displaced. 
By  reinstatement  {restitutio  in  integrum),  in  the  stricter  sense 
of  the  word,  in  which  it  is  here  used,  is  meant  the  extraordi- 
nary remedy  of  the  law  by  which  a  person  who  has  been 
grievously  injured  is,  by  reason  of  natural  equity,  restored 
by  the  judge  to  that  state,  condition,  or  right,  in  which  he 
was  before  the  injury  occurred."  It  is  called  an  extraordi- 
nary remedy,  because  as  long  as  an  ordinary  action  or 
remedy  is  available  reinstatement  is  not  granted. 

1375.  This  remedy  is  not  given  in  criminal  causes.  For, 
as  the  Roman  law  says :  "  In  criminibus  aetatis  suffragio 
minores  non  juvantur;  etenim  malorum  mores,  infirmitas 
animi  non  excusat."^  It  is  therefore  conceded  only  in  civil 
causes. 

1376.  What  is  required  in  order  that  a  party  may  be 

'  Schmalzg.,  1.  c,  n.  152.  »  Cf.  Reiff  ,  1.  2,  t.  28,  n.  331. 

'  Cap.  Auditis  3,  de  in  integ.  rest.   (i.  41);  Glossa,  ib.  in  cas. ;  Reiff.,  eod. 
n.  3;  De  Angelis,  eod.,  n.  i.  •*  L.  i,  C.  Si  adv.  del.  (ii.  35). 


Ecclesiastical  Civil  Processes  or  Trials.         359 

entitled  to  or  obtain  reinstatement?  i.  The  injury  com- 
plained of  should  be  grave  or  notable.  For  the  maxim  of 
the  Roman  law,  as  adopted  by  the  Church,  is :  "  De  minimis 
non  curat  praetor."  And,  in  fact,  if  reinstatement  were 
granted  for  the  most  trifling  injuries  there  would  be  no  end 
to  litigations.'  2.  This  grave  injury,  prejudice,  damage,  or 
loss  must  have  been  inflicted  by  the  cunning  or  deceit  of  the 
opponent,  or  caused  by  the  inexperience,  inadvertence  of 
the  party  injured  (if  he  is  a  minor),  or  of  his  agent  or  guard- 
ian, or  in  other  similar  ways.^  Hence  if  the  injury  or  dam- 
age happens  fortuitously,  reinstatement  is  not  granted.' 
3.  The  act  or  contract  which  gave  rise  to  the  injury  or 
damage  must  be  valid  de  jure,  or  there  must  be  at  least  a 
doubt  whether  it  is  ipso  jure  invalid.  For  when  the  act  is 
ipso  jure  invalid,  no  other  remedy  except  a  simple  declaration 
of  its  invalidity  by  the  judge  is  needed.  4.  Finally,  this  act 
or  contract  must  be  rescindable.  For  there  are  certain  acts 
which  when  once  valid  cannot  be  any  longer  revoked,  as  is 
the  case  with  a  marriage  validly  contracted.* 

1377.  To  whom  can  reinstatement  be  granted?  i.  As  a 
general  rule,  to  all  minors — that  is,  those  who  have  not  yet 
entered  upon  the  twenty-sixth  year  of  their  age — who  have 
suffered  a  serious  loss  or  injury.^  The  law  protects  them 
against  the  effects  of  their  youth  and  inexperience,  which 
expose  them  to  being  easily  deceived.  Hence,  too,  a  minor 
who  shows  that  he  has  suffered  loss  or  damage  in  a  trans- 
action or  judicial  procedure  is  entitled  to  reinstatement  on 
the  simple  ground  that  he  is  a  minor.  Hence  he  need  prove 
only  two  things  to  entitle  him  to  reinstatement:  i,  that  he 
has  suffered  a  serious  damage  ;  2,  that  he  is  a  minor.  It 
matters  not  whether  this  loss  or  injury  has  been  caused  by 


'  De  Angelis,  1.  c,  n.  2.  *  lb. 

^  Ex  cap.  I,  de  In  integ.  (i.  41).  *  De  Angelis,  1.  i.,  t.  41,  n.  2. 

^  L.  Hoc  edictum  i  ff.  de  minor.  (4.  4). 


360  Ecclesiastical  Civil  Processes  or  Trials. 

his  own  carelessness,  or  that  of  his  parents  or  guardian,  or 
through  the  skill  and  fraud  of  his  opponent. 

1378.  2.  By  minors  are  here  also  meant  all  churches, 
monasteries,  convents,  and  other  pious  places  {loca  pid),  as 
hospitals,  orphan  asylums,  erected  by  ecclesiastical  authority ; 
also  confraternities  and  societies  established  for  the  purpose 
of  promoting  religion  and  piety.'  For  all  these,  like  minors, 
are  not  capable  of  governing  themselves,  but  are  subject  to 
and  governed  by  others. 

1379.  Many  examples  of  reinstatement  granted  to  churches 
on  the  ground  that  they  are  considered  minors,  are  found  in 
the  Decretals.  Thus  Pope  Alexander  III.  ordered  that 
wherever  a  church  suffered  loss  in  selling  or  leasing  any  of 
its  property  (the  same  holds  of  course  also  when  it  buys 
property),  it  should  be  reinstated,^  and  that  although  the  sale 
or  lease  was  otherwise  perfectly  legal  and  properly  made.^ 
And  to  this  reinstatement  a  church  is  entitled  even  as  against 
another  church."  In  like  manner  Pope  Innocent  III.  decided, 
in  two  cases  brought  before  him,  that  where  a  church  lost 
its  cause  in  an  ecclesiastical  court,  because  of  the  careless- 
ness of  its  procurator  or  the  failure,  even  though  culpable, 
of  its  agents  to  submit  proper  proofs,  it  was  entitled  to  rein- 
statement on  the  ground  that  a  church  is  placed  on  the  same 
footing  with  a  minor.* 

1380.  Sometimes  reinstatement  is  also  conceded  to  majors 
or  persons  who  have  completed  the  twenty-fifth  year  of 
their  age,  provided  the  following  conditions  concur:  i.  That 
there  be  a  just  and  reasonable  cause  for  the  reinstatement, 
apart  from  the  injury  itself ;  2.  that  there  is  no  ordinary 
remedy  left  to  redress  the  injury. 

1381.  We  have  just  said,  that  there  be  just  and  reasonable 
cause,  apart  from  the  injury  itself.     Now,  what  are  the  chief 

•  Cap.  I,  3,  de  In  integ.  rest.  (i.  41).     '  Cap.  i,  eod.     ^Ib.  Glossa,  v.  Requisivit. 

*  Ex  cap.  2,  3,  eod.;  Reiff.,  1.  i,  t.  41,  n.  42.  *  Cap.  2,  3  (i.  41). 


Ecclesiastical  Civil  Processes  or  Trials.  361 

causes  entitling  majors  to  reinstatement?  i.  Absence. — By- 
absence  is  here  meant  any  lawful  absence  which  prevented 
the  person  seeking  reinstatement  from  being  present  and 
able  to  defend  his  rights,  in  consequence  of  which  absence 
he  lost  his  cause  and  had  judgment  pronounced  against  him. 

2.  Fraud  or  deception. — Thus  a  person  is  entitled  to  reinstate- 
ment if  he  loses  his  cause  because  his  opponent  or  a  third 
party  has  destroyed,  forged,  or  falsified  documents,  or  cor- 
rupted and  bribed  the  judge  oi*  witnesses.  For  a  sentence 
based  upon  corruption  or  fraud  should   not  be  sustained.' 

3.  Finally y  any  reasonable  cause  or  hindrance  ivJiatcver — 
v.g.,  fear,  sickness,  etc. — which  prevented  the  party  from 
defending  his  rights,  or  making  use  of  the  ordinary  means 
of  redress, — v.g.,  appeal,— entitle  a  person  of  full  age,  or  a 
major,  to  reinstatement.'' 

1382.  Differences  between  reinstatement  granted  to  majors  and 
that  given  to  minors. — From  what  has  been  said,  it  is  plain 
that  the  chief  differences  between  reinstatements  granted 
to  minors  and  those  conceded  to  majors  are  the  following : 
I.  A  minor  is  reinstated  wherever  it  is  shown  or  proved  that 
he  has  suffered  loss  or  injury  in  any  act,  contract,  or  judicial 
proceedings,  and  that  even  though  the  loss  or  injury  oc- 
curred through  the  minor's  own  carelessness  or  the  negli- 
gence of  his  procurator.'  But  in  the  case  of  majors  it  must 
be  proved,  not  only  that  they  sustained  serious  losses  or  in- 
juries, but  moreover  that  they  suffered  these  losses,  not 
through  their  own  carelessness  or  indifference,  but,  as  we 
have  seen,  either  because  of  lawful  absence,  or  fraud  and 
deception,  or  other  just  cause  * — v.g.,  if  they  were  prevented 
by  just  fear  or  sickness  from  repelling  the  injury  by  an 
appeal.^     For,  as  the  Roman  law  adopted  by  the  Church 

'  Munchen,  1.  c,  vol.  i.,  p.  579,  n.  12,  13. 

*  L.  Hujus  edict!  i  ff.  Ex  quibus  caus.  maj.  (4.  6);  ib.,  1.  2,  3,  4  sq. 

2  Cap.  2,  3,  de  In  integr.  rest.  (i.  41).     *  L.  i,  2,  3.  ff.  de  In  integr.  rest.  (4.  i). 

»  Cap.  4  (i.  41). 


362  Ecclesiastical  Civil  Processes  or  Trials. 

says :  "  Non  enim  negligentibus  subvenitur,  sed  necessitate 
rerum  impeditis."  '  In  minors,  negligence  or  carelessness  is 
excused  because  of  their  youth/  but  not  in  persons  of  full 
age. 

1383.  2.  There  is  another  difference  between  the  rein- 
statement of  majors  and  minors.  Majors  are  not  reinstated 
so  long  as  the  ordinary  remedy  of  appeal  can  bp  made  use  of 
by  them  ;  while  minors  are  reinstated  even  when  they  can 
have  recourse  to  appeals." 

1 384.  Speaking  in  general,  reinstatement  can  be  demanded 
in  all  civil  (as  contradistinguished  from  criminal)  acts  or  tran- 
sactions whatever,  which  though  valid  are  yet  rescindable, 
and  by  which  a  person  has  suffered  loss  or  been  injured, 
whether  they  relate  to  contracts,  judicial  proceedings,  or 
lapses  of  time.*  We  say,  rescindable ;  for  where  a  valid  act  is 
not  reversible — v.g.,  when  a  minor  has  validly  contracted  a 
marriage — it  is  plain  that  reinstatement  cannot  take  place. 
On  the  other  hand,  it  is  evident  that  all  judicial  acts,  even 
though  valid,  are,  as  a  rule,  rescindable  by  the  superior. 
Hence,  if  a  party  to  a  trial,  who  is  a  major,  is  injured  by  a 
judicial  sentence  (we  speak  of  sentences  of  ecclesiastical 
judges),  final  or  only  interlocutory,  and  has  failed  for  just 
reasons — v.g.,  out  of  fear  of  the  judge,  sickness,  excusable 
ignorance  of  the  law — to  appeal  within  the  ten  days  granted 
by  law,  he  is  entitled  to  reinstatement.^ 

1385.  Mode  of  granting  reinstatement. — This  mode  consists 
of  three  things — namely,  {a)  that  reinstatement  be  demanded 
from  the  competent  judge  ;  {p)  within  the  prescribed  time : 
{c)  that  it  be  asked  and  granted  in  the  manner  prescribed  by 
the  sacred  canons.  Let  us  briefly  describe  each  of  these  for- 
malities.    First,  who  is  the  competent  judge  ?     We  premise 

^  L.  16  if.  Ex  quib.  caus.  maj.  (4.  6).  *  L.  Hoc  edictum  i  ff.  (4.  4). 

*  Reiff.,  1.  I,  t.  41,  n.  55. 

*  Cap.  2,  3,  5,  de  in  Int.  rest.  (i.  41);  Clem.  cap.  unic.  (i.  11);  De  Angelis, 
I.  c,  n.  4.  *  Cap.  Ecclesia  i,  de  rest,  in  integ.,  in  6°. 


Ecclesiastical  Civil  Processes  or  Trials.  .363 

with  De  Angelis,*  that  reinstatement  may  be  asked  {ci)  either 
incidejitally^-i.e.,  in  the  course  of  another  trial,  where  it  comes 
up  incidentally,  {b)  or  principally — that  is,  directly  and  by 
itself,  or  separately.  Now,  if  reinstatement  is  asked  against 
a  final  sentence,  or  one  equivalent  to  a  final  sentence,  the 
universal  custom  is,  that  it  cannot  be  granted  save  by  the 
superior  judge, — that  is,  the  judge  of  appeal, — namely,  the 
metropolitan  or  Holy  See. 

1386.  If  reinstatement  is  demanded  against  other  than 
judicial  acts,  such  as  contracts,  lapses  of  time,  then  a  distinc- 
tion must  be  made  between  those  cases  where  the  sacred 
canons  expressly  ordain  that  reinstatement  shall  be  conceded 
— v.g.,  in  the  case  of  minors,  churches,  etc.,  being  injured,  and 
those  cases  where  this  is  not  ordained  expressly.  In  the  first 
case,  not  only  the  Pope,  but  any  ordinary  judge,  and  conse- 
quently any  bishop,  having  jurisdiction  in  the  case  can  grant 
reinstatement,  whether  asked  for  principally  or  only  inci- 
dentally.'' A  delegated  judge,  unless  specially  authorized,  can 
do  so  only  when  it  is  demanded  incidentally.^  In  the  second 
case  the  Pope  alone  can  grant  it."  Hence  it  may  be  said  that 
practically  speaking,  the  Holy  See  alone  can  reinstate  ma- 
jors, unless  they  clearly  come  within  the  category  of  those 
entitled  to  reinstatement  by  reason  of  lawful  absence  or 
fraud,  as  above  explained. 

1387.  Second,  within  what  time  should  reinstatement  be 
asked  ?  Reinstatement  can  and  should  be  asked  within  four 
years,  as  is  expressly  stated  both  in  the  civil  or  Roman^  and 
the  canon  law.'  In  the  case  of  minors  this  term  begins,  not 
from  the  day  they  suffered  the  loss,  but  from  the  time  they  be- 
came majors, — i.e.,  from  the  first  day  of  the  twenty-sixth  year 
of  their  age, — and  lasts  consequently  to  the  first  day  of  their 

'  L.  c,  n.  5.  '  Cap.  g,  de  In  int.  rest.  (i.  41).  ^  lb. 

*  S.  C.  C.  in  Mechl.,  22  Maii,  16S7;  S.  C.  C.  in  Herbip.,  1854. 

^  L.  7,  C.  de  Temp,  in  int.  (ii.  53).    ^  Cap.  Ecclesia  i,de  Rest,  in  integ.,  in  6°  (i.  21). 


364  Ecclesiastical  Civil  Processes  or  Trials. 

thirtieth  year/  In  all  other  cases — i.e.,  in  the  case  of 
churches  or  congregations,  pious  places  and  the  like,  as  also 
of  majors — it  begins  to  run  from  the  day  when  the  injury 
was  inflicted,  or  rather  when  it  became  known  to  the  injured 
party."*  Here  it  will  be  observed  that  in  this  particular  re- 
spect churches  and  pious  places  are  not  placed  on  a  like 
footing  with  minors. 

1388.  When  this  space  of  four  years  has  elapsed,  and  the 
injured  party  (whether  it  be  a  minor  who  has  attained  his 
full  age,  or  a  church  or  pious  place)  has  neglected,  or  failed 
through  carelessness  and  negligence,  to  ask  for  reinstatement 
within  that  period,  it  can  no  longer  be  granted.  We  say, 
has  failed  through  carelessness ;  for  where  the  party  is  pre- 
vented by  some  good  reason — v.g.,  by  fear,  sickness,  or  other 
reasonable  cause — from  making  the  application,  reinstate- 
ment is  granted  even  after  the  four  )'^ears  have  expired.^ 

1389.  Finally,  reinstatement  should  be  granted  by  the 
judge  in  the  manner  prescribed  by  the  sacred  canons — that 
is,  only  upon  a  proper  trial  or  hearing  of  the  cause  why 
reinstatement  should  be  granted  or  refused.*  This  trial 
must,  naturally  speaking,  take  place  in  the  presence  of  the 
party  against  whom  the  reinstatement  is  demanded.  Hence 
he  must  be  cited  to  be  present  at  the  hearing,  and  allowed 
to  submit  his  proofs  and  argue  his  case.  If  he  is  contuma- 
ciously absent  the  hearing  goes  on  without  him.* 

1390.  Now,  what  is  to  be  proved  or  shown  in  this  trial  or 
hearing  ?  We  must  distinguish  between  majors  and  minors. 
A  major  who  demands  reinstatement  must,  as  we  have  seen, 
prove  {ci)  that  he  has  suffered  very  serious  loss  or  injury  in 
a  transaction,  judicial  procedure,  or  other  act ;  {b)  that  there 
is,  besides,  a  just  cause  for  his  demand.     A  minor  (the  same 

'  L.  7,  Cod.  cit.  *  Ex  cap.  Ecclesia  cit. ;  Reiff.,  1.  i,  t.  41,  n.  63. 

*  L.  7,  C.  cit.;  cap.  Ecclesia  cit.;  Reiff.,  1.  i,  t.  41,  n.  64  sq. 

*  L.  II  ff.  de  Minor  (iv.  4);  L,  3  ff.  dein  integr.  rest.  (iv.  i). 

*  De  Angelis,  1.  c,  n.  5. 


Ecclesiastical  Civil  Processes  or  Trials.  365 

holds  of  churches  and  pious  places)  must  show  merely  ia) 
that  he  has  suffered  serious  loss  or  injury ;  {b)  that  he  is  a 
minor.* 

1391.  What  is  the  effect  of  reinstatement?  The  effect  of 
reinstatement  as  demanded,  but  not  yet  granted,  is  that 
everything  should  remain  in  statu  quo.  Hence  the  sentence 
against  which  reinstatement  is  asked  cannot,  as  a  rule,  be 
executed  so  long  as  the  request  for  reinstatement  has  not 
yet  been  decided  by  the  judge.*  Of  reinstatement,  as  not 
only  asked,  but  already  granted,  the  chief  effect  is  that  each  of 
the  parties — that  is,  not  only  the  party  asking,  but  also  the 
one  opposing  reinstatement — receives  back  what  he  had 
originally,  and  is  consequently  placed  in  the  same  condition 
in  which  he  was,  before  the  contract,  act,  or  judicial  sen- 
tence causing  the  alleged  injury,  took  place.' 

1392.  Of  certain  peculiar  characteristics  of  reinstatement  in 
spiritual  causes  or  matters. — So  far  we  have  spoken  of  rein- 
statement in  ecclesiastical  causes  or  matters  in  general.  We 
shall  now  say  a  few  words  in  regard  to  certain  features 
which  are  peculiar  to  reinstatement  in  a  certain  kind  of  eccle- 
siastical causes — namely,  in  those  causes  or  matters  which 
are  more  properly  spiritual  in  their  nature.  By  these  spiri- 
tual causes  or  matters  we  mean  chiefly  those  which  pertain 
{a)  to  the  sacrament  of  marriage ;  (^)  appointments  to  eccle- 
siastical offices  and  benefices ;  {c)  and  other  spiritual  causes 
of  a  kindred  nature,  such  as  the  right  to  receive  tithes  or  the 
offerings  of  the  faithful,  or  to  exercise  the  right  of  electing 
ecclesiastical  superiors  or  prelates,  etc." 

1393.  Of  the  peculiarities  of  reinstatement,  so  far  as  eccle- 
siastical offices,  benefices,  and  parishes  are  concerned,  we 
have  already  spoken  above.^  As  to  reinstatement  in  spiri- 
tual causes  of  the  third  kind,  such  as  the  right  of  election,  of 

'  Schmalzg.,  1.  i,  t.  41,  n.  46.  '  L.  unic.  C.  Ininteg.  rest.  (ii.  41). 

'  L.  24  ff.,  §  4,  de  Minor.  (4.  4);  Schmalzg.,  1.  c,  n.  47. 

*  Cf.  supra,  n.  1099  sq.  *  Supra,  n.  nob  sq. 


366  Ecclesiastical  Civil  Processes  or  Trials. 

receiving  the  offerings  of  the  faithful  or  tithes,  it  may  be 
asked  whether  the  person  or  persons  spoHated  of  such 
rights  is  to  be  reinstated  before  all  else — that  is,  even  before 
he  proves  that  he  has  a  legitimate  title  or  claim  to  these 
rights  ?  The  answer  is,  that  where  the  common  law  of  the 
Church  favors  the  spoliator  and  is  against  the  person  spoli- 
ated,— i.e.,  where  the  common  law  vests  the  right  or  title  to 
the  object  in  question  in  the  despoiler  and  not  the  person 
despoiled, — the  person  spoliated  must  first  establish  his  title 
or  claim  or  indult  or  privilege,  or  at  least  the  presumption 
of  a  title,  before  he  can  be  reinstated/ 

1394.  We  say,  where  the  common  law  favors  the  spoliator  ; 
for  where  it  favors  the  person  despoiled,  the  latter  must  be 
reinstated  before  he  shows  any  title  whatever.  Thus  a  par- 
ish priest  who  is  deprived  of  the  income,  in  whole  or  in 
part,  of  his  parish  is  entitled  forthwith  to  reinstatement 
The  reason  is,  that  by  the  common  law  of  the  Church  he 
has  the  right  to  receive  this  income."  We  say,  secondly, 
or  at  least  the  presumption  of  a  title;  such  presumption  in 
favor  of  a  title  would  be  created  by  a  long  and  peaceful  pos- 
session of  the  right  in  question. 

1395.  It  now  remains  to  say  a  few  words  in  regard  to 
reinstatement  in  the  third  kind  of  the  above  spiritual  causes 
— namely,  matrimonial  causes.  As  a  person  is  said  to  be 
despoiled  ispoliatus)  in  property  and  other  rights  when  he  is 
ynjustly  deprived  of  them,  so  also  is  he  said  to  be  spoliated 
in  reference  to  his  marriage  rights  when  he  is  unjustly 
stripped  of  his  marriage  partner.  This  spoliation  {spolium) 
may  be  caused  not  only  by  a  third  party,  but  also  by  either 
of  the  married  couple,  and  that  chiefly  in  three  ways : 
I.  When  either  of  the  pair  leaves  the  other  of  his  or  her  own 
authority ;  for  the  one  who  is  thus  left  is  unjustly  deprived 


*  Ex  cap.  2,  de  Rest.  Spol.  in  6°  (ii.  5). 

•  Ex  cap.  2,  cit. ;  Schmalzg.,  1.  2,  t.  13,  n.  73. 


Ecclesiastical  Civil  Processes  or  T^'ials,  367 

by  the  other  of  his  conjugal  rights.  2.  When  the  wife  leaves 
her  husband  by  her  own  authority,  and  becoming  penitent 
wishes  to  return  to  him  and  is  not  received  by  him ;  for  in 
this  instance  the  husband  refusing  to  take  her  back  is  said 
to  despoil  her  of  her  marriage  rights.  3.  When  the  wife 
who  is  ejected  by  her  husband,  but  is  afterwards  recalled 
by  him,  refuses  to  return,  as  in  this  case,  the  husband  would 
be  despoiled  of  his  rights.' 

1396.  Now,  in  all  these  cases  the  rule  is,  that  the  ecclesi- 
astical judge,  upon  due  application  by  the  injured  party, 
should,  speaking  in  general,  forthwith  decree  reinstatement — 
that  is,  restore  him  or  her  to  his  or  her  conjugal  rights  by 
obliging  the  party  that  left  of  his  or  her  own  accord  to  return, 
unless  the  latter  can  show  just  cause  for  his  or  her  action. 
We  say,  unless  the  latter  can  shoiv  just  cause ;  that  is,  unless 
the  party  who  left  of  his  or  her  own  accord  can  prove  v.g.,  the 
existence  of  an  annulling  impediment,  or  cruelty,  or  adultery, 
or  other  serious  bodily  or  spiritual  danger.^  Hence,  if,  for  in- 
stance, a  wife  who  has  left  her  husband  shows  that  she  has 
been  cruelly  treated  by  him,  she  should  not  be  compelled  to 
return  to  him,  until  he  has  given  proper  pledges  that  he  will 
not  molest  her  again.  How  reinstatement  takes  place,  when 
an  impediment  is  alleged,  see  Schmalzgrueber,  I.  c,  n.  6^. 

'  Schmalzg.,1.  c,  n.  57. 

*  Cap.  8,  10,  13,  de  Rest.  spol.  (ii.  13);  Schmalzg,,  1.  c,  n.  6i  sq. 


CHAPTER  VI. 

ECCLESIASTICAL   CIVIL    TRIALS   PECULIAR    TO    MATRIMONIAL 
CAUSES,  ALSO   IN   THE   U.  S. 

{Processus  in  Causis  Matrimonialibus.) 

1397.  If,  after  a  marriage  has  been  contracted,  an  annul- 
ling impediment  is  discovered,  by  which  such  marriage  is 
invalid,  this  defect  or  impediment  should  be  removed  and 
the  marriage  healed,  either  in  the  ordinary  way,  by  a  dis- 
pensation, or  in  the  extraordinary  manner — i.e.,  by  a  dispen- 
sation in  radice.  But  if  the  impediment  cannot  be  taken 
away — v.g.,  where  it  is  of  the  law  of  nature,  and  therefore 
not  dispensable  by  the  Church,  or  where  the  parties  prefer 
to  regain  their  matrimonial  liberty  rather  than  have  the  mar- 
riage healed — the  cause  must  be  submitted  before,  tried  and 
decided  by  the  proper  or  competent  judge  or  tribunal.  In 
other  words,  the  question  whether  the  marriage  is  invalid  or 
not  must  be  adjudicated  by  the  proper  judge.  We  shall, 
therefore,  in  this  chapter  speak,  i,  of  the  competent  forum 
and  judge  for  matrimonial  causes ;  2,  of  the  personnel  of  this 
forum  or  tribunal ;  3,  of  the  form  of  trial  common  to  matri- 
monial causes  in  general ;  4,  of  the  peculiar  mode  of  procedure 
in  divorces  from  bed  and  board  ;  5,  of  the  special  form  of  trial 
in  causes  of  nullity ;  6,  of  the  mode  of  procedure  to  ascertain 
the  status  liber.  All  these  questions  will  be  discussed  under 
separate  heads,  and  the  relations  they  bear  to  our  peculiar 
circumstances  in  the  United  States,  will  also  be  considered. 


Ecclesiastical  Civil  Trials.  369 

Art.  I. 

Which  is  the  competent  Foriim  for  Matrimonial  Causes  ? — Rela- 
tion  of  Church  and  State  in  this  matter,  especially  in  the 
United  States. 

1398.  Among  those  matters  which  fall  under  the  jurisdic- 
tion of  the  ecclesiastical  forum,  by  their  very  nature,  marriage 
holds  a  prominent  place.  The  Council  of  Trent  has  expressly 
defined  that  matri;nonial  causes  belong  to  ecclesiastical,  not 
to  secular  judges.'  However,  as  Pope  Benedict  XIV.  well 
explains,  not  everything  that  relates  to  marriage  pertains,  by 
that  very  fact,  to  the  ecclesiastical  forum.*  For  there  are  tliree 
kinds  of  matrimonial  causes  or  questions.  First,  some  have 
reference  to  the  validity  of  the  marriage  contracted.  That 
these  questions  belong  exclusively  to  the  ecclesiastical  forum, 
no  Catholic  can  deny.  Thus  the  Church  has  the  sole  right  to 
declare  whether  an  impediment  exists  or  not.  In  like  man- 
ner, it  is  her  province  to  pronounce  upon  the  legitimacy  or 
illegitimacy  of  the  children,  because  questions  of  this  kind 
depend  upon  the  validity  or  nullity  of  the  marriage.  Hence, 
as  it  belongs  to  the  Church  to  declare  whether  a  marriage  is 
valid  or  not,  so  also  is  it  her  right  to  pronounce  children 
either  legitimate  or  illegitimate,  at  least  so  far  as  the  ecclesi- 
astical effects  are  concerned.^ 

1399.  Secondly,  others  regard  either  the  validity  of  be- 
trothments  or  the  right  of  having  a  divorce  from  bed  and 
board.  These,  in  like  manner,  because  of  their  relation  to 
the  sacrament  of  matrimony,  pertain  solely  to  the  ecclesias- 
tical forum.*  We  say,  because  of  their  relation,  etc.;  for  it  is 
evident  that  betrothments  are  a  preliminary  step  to  marriage, 
and  divorces  destroy  the  rights  arising  from  marriage. 

'  C.  Trid.  sess.  24,  can.  12,  de  Sacr.  matr.  *  De  Syn. ,  1.  g,  cap.  9,  n.  3. 

'  Cap.  1-15,  Qui  filii  sint  legitimi  (iv.  17). 

*  Cap.  10,  de  Sponsal.  (iv.  i);  cap.  3,  4,  de  Divert,  (iv.  19). 


O.' 


70  Ecclesiastical  Civil  Trials  Peculiar  to 


1400.  Thirdly,  there  are  those  which  are  connected  indeed 
with  matrimony,  but  yet  have  a  direct  bearing  only  on  tem- 
poral or  secular  matters,  such  as  the  marriage  dower  or  gifts, 
the  inheritance,  alimony,  and  the  like.  These  belong  to  the 
secular  forum,  and  not,  at  least  directly,  to  the  ecclesiastical 
judge.'  We  say,  not,  at  least  directly ;  for  when  they  come 
up  before  the  ecclesiastical  judge  incidentally, — i.e.,  in  con- 
nection with  and  during  the  trial  or  hearing  of  matrimonial 
questions  concerning  the  validity  of  a  marriage,  betroth- 
ment,  or  the  right  to  a  divorce  a  thoro  et  mensa,  they  can  be 
decided  by  him.' 

140 1.  Relatiojts  of  Church  arid  State  existing  at  present, 
especially  in  the  United  States,  in  regard  to  matrimonial  causes. 
— In  the  United  States  (as  in  most  countries  of  the  continent) 
marriage  is  regarded  by  the  law  as  merely  a  civil  contract,' 
and  hence  certain  secular  magistrates,  equally  with  the 
ministers  of  the  Gospel  (we  use  the  words  of  Hudson), 
have  the  right  to  solemnize  it.*  The  persons  who  are 
generally  authorized  by  law  in  this  country  to  solemnize 
marriages  are,  chiefly:  i.  "Any  regularly  ordained  minis- 
ter of  any  religious  society."  2.  "  Any  justice  of  the  peace.' 
3.  "  Any  religious  society,  agreeably  to  its  forms  and  regu- 
lations." ^ 

1402.  Thus  in  the  State  of  New  Jersey  the  law  is :  "  Every 
judge  of  any  court  of  common  pleas,  and  justice  of  the  peace, 
and  mayor  of  a  city  of  this  State,  and  every  stated  and  ordained 
minister  of  tJie  Gospel,  is  hereby  authorized  to  solemnize  mar- 
riages between  such  persons  as  may  lawfully  enter  into  the 
matrimonial  relation  ;  and  every  religious  society  in  this  State 
may  join  together  in  marriage  such  persons  as  are  of  the  same 
society,  or  when  one  of  such   persons  is  of  such  society, 

'  Ex  cap.  7,  Qui  filii  sint  legitimi  (iv.  17). 

*  Ex  cap.  I,  t.  c;  Bened.  XIV.,  1.  c,  n.  5;  Kutschker,  1.  c,  vol.  v.,  p.  448. 

*  Walker,  American  Law,  p.  246,  §  102. 

*  Hudson,  Law  for  the  Clergy,  p.  7.  '  Walker,  1.  c,  p.  248,  n.  4, 


Matrimonial  Causes,  also  in  the  U.  S.  371 

according  to  the  rides  and  customs  of  the  society  to  which  they 
or  either  of  them  belong."  * 

1403.  As  will  be  seen  from  this,  the  civil  government  in 
the  United  States  does  not  require,  for  the  legality  of  the 
marriage,  that  a  civil  marriage  or  separate  marriage  ceremony 
be  performed  before  the  civil  magistrate,  besides  that  which 
may  be  solemnized  by  the  ecclesiastical  authority.  On  the 
contrary,  it  allows  "  all  persons  belonging  to  any  religious 
society,  church,  or  denomination  to  celebrate  their  marriage 
according  to  the  rules  and  principles  of  such  religious  so- 
ciety, church,  or  denomination."  *  Hence  also  it  is  plain 
that  the  State,  with  us,  is  anxious  not  to  infringe  upon  the 
liberty  of  conscience  guaranteed  by  the  Constitution,  also  in 
regard  to  marriages.  It  recognizes  as  valid  and  legal  in  the 
eyes  of  the  law  any  marriage  celebrated  by  a  minister,  priest, 
or  other  clergyman,  according  to  the  rules  and  principles  of 
his  church  or  sect.  Nay,  as  a  rule,  the  law  in  all  our  States 
is,  that  the  parochial  registers  of  marriages  shall  be  admitted 
as  evidence  in  all  courts  of  law  and  equity.' 

1404.  Generally  speaking,  however,  the  civil  government 
with  us  prescribes  that  the  person  officiating  at  a  marriage, 
whether  he  be  a  minister  or  priest  or  civil  magistrate,  shall 
forward  within  a  certain  time  a  certificate  of  the  marriage  to 
the  county  clerk  or  other  official  designated.  Thus  in  New 
Jersey  the  law  is:  "  That  every  justice  of  the  peace  and  min- 
ister of  the  Gospel,  or  other  person  having  authority  to  sol- 
emnize marriages,  shall  make  and  keep  a  particular  record 
of  all  marriages  solemnized  before  him,  and  transmit  a  cer- 
tificate of  every  particular  marriage  within  six  months  after 
the  solemnization  thereof,  to  the  clerk  of  the  court  of  common 
pleas  for  the  county  in  which  the  marriage  was  solemnized."  * 

*  Revision  of  Statutes  of  N.  J.,  p.  1351,  sec.  i;   cf.  ib.,  p.  631,  sec.  2. 
2  Cf.  Statutes  of  Illinois,  ap.  Hudson,  p.  29,  sec.  5. 
2  Cf.  Revision  of  Statutes  of  N.  J.,  p.  633,  sec.  10.     Trenton,  1877. 
^  Revision  of  Statutes  of  N.  J.,  p.  632,  sec.  6. 


372  Ecclesiastical  Civil  Trials  Peculiar  to 

1405.  Moreover,  the  State  with  us  generally  requires 
those  who  solemnize  marriages  to  use  all  due  diligence  to 
ascertain  whether  the  parties  are  in  statu  liber o, — i.e.,  whether 
there  is  any  impediment  or  disability  in  the  way, — and  au- 
thorizes them  to  examine  the  parties  and  also  witnesses,  on 
their  oath,  as  to  the  legality  of  the  intended  marriage.'  For 
further  particulars  concerning  the  relation  of  Church  and 
State,  with  us,  in  reference  to  matrimony  and  divorces,  see 
our  Notes  on  the  Second  Plenary  Council  of  Baltimore^  where 
we  have  discussed  the  matter  in  a  fuller  manner. 


Art.  II. 

Organization  or  Personnel  of  Ecclesiastical  Courts  for  Matri- 
monial Causes,  also  in  the  United  States. 

1406.  The  personnel  or  organization  of  ecclesiastical  courts 
for  matrimonial  causes  is,  with  the  exception  of  the  defender 
of  the  marriage,  the  same  as  that  of  ecclesiastical  courts  for 
other  ecclesiastical  causes,  civil  and  criminal.  The  bishop  may 
if  he  chooses,  establish  in  his  diocese  a  separate  or  special 
tribunal  or  court  for  matrimonial  causes,  or  he  may  have 
but  one  and  the  same  tribunal  or  court  both  for  matrimonial 
causes  and  all  other  causes,  civil  and  criminal,  provided, 
when  there  is  question  of  matrimonial  causes  involving  the 
validity  or  invalidity  of  a  marriage  already  contracted,  the 
defender  of  marriage  be  added  to  the  court. 

1407.  As  a  matter  of  fact,  matrimonial  causes,  even  those 
involving  the  validity  of  marriages  already  contracted,  are  de- 
cided in  the  United  States,  as  a  rule,  directly  by  the  bishop  or 
even  sometimes  by  the  rector  of  the  parties,  without  any  for- 
mality whatever.  But  in  Europe,  where  questions  relating  to 
betrothments  and  marriages  are  adjudicated  with  all  the  for- 
malities prescribed  by  canon  law,  there  are  frequently,  owing 

•  Hudson,  1.  c. ,  p.  100.  »  Pp.  246-263. 


Matrimonial  Causes y  also  in  the  U.  S.  373 

to  the  multiplicity  of  these  causes  and  their  complicated  na- 
ture, and  for  their  more  expeditious  hearing,  separate  or 
special  diocesan  tribunals  or  courts  established  for  matri- 
monial causes.* 

1408.  Whether  the  ecclesiastical  court  for  matrimonial 
causes  is  the  same  with  that  for  other  causes,  or  whether  it 
is  a  separate  tribunal,  it  consists,  like  all  other  ecclesiastical 
courts,  chiefly  of  a  judge,  and  a  secretary,  to  whom  in  causes 
of  nullity  the  'defender  of  marriage  must  be  added.  We  shall 
therefore  describe  the  office  and  duty  of  each  of  these  offi- 
cials in  relation  to  the  hearing  or  trial  of  matrimonial  causes. 

1409.  I.  The  Judge. — By  the  law  of  the  Church,  as  in  force 
at  the  present  day,  the  hearing  and  adjudication  of  matri- 
monia,l  causes  (no  less  than  of  all  other  ecclesiastical  causes, 
civil  and  criminal)  belongs  in  the  first  instance  exclusively 
to  the  Ordinary  of  the  diocese,  that  is,  to  the  bishop,  sede 
plena,  and  to  the  vicar-capitular  (with  us,  administrator),  or 
to  one  delegated  by  him,  sede  vacante,  and  no  longer,  as  for- 
merly,— i.e.,  before  the  Council  of  Trent, — to  inferior  eccle- 
siastics, such  as  rural  deans  and  archdeacons.^ 

14 10.  The  Ordinary  may  authorize  or  delegate  his  vicar- 
general,  or  any  other  worthy  ecclesiastic,  to  hear  and  pass 
final  sentence  in  matrimonial  causes,  and  that  universally— 
that  is,  not  only  in  this  or  that  matrimonial  cause,  but  in 
general  in  all  such  causes.  For  the  power  of  the  bishop 
concerning  these  causes  or  matters  is  ordinary,  and  may 
therefore,  like  any  other  ordinary  power,  be  delegated  to 
others.  Nay,  the  more  probable  opinion  is,  that  the  vicar- 
general  is  empowered  to  hear  and  decide  or  pass  final  sen- 
tence on  matrimonial  causes  by  virtue  of  his  office,  without 
any  special  mandate.^ 

^  Permaneder,  I.  c,  §  303,  p.  496. 

*  C.  Trid. ,  sess.  24,  cap.  20,  de  Ref. ;  cf.  cap.  7,  de  Off.  ord.  in  6°;  Kutschlc    , 
1.  c. ,  vol.  v.,  p.  463. 

'  Mansella,  de  Processu  jud.  in  caus.  matr.,  p.  173.     Romae,  1881. 


3  74  Ecclesiastical  Civil  Trials  Peculiar  to 

141 1.  However,  the  plaintiff  {actor)  in  a  matrimonial  cause 
cannot  bring  such  cause  before  any  episcopal  court  he  pleases, 
but  only  before  that  tribunal  or  court  which  is  competent. 
Now,  as  a  rule,  that  tribunal  is  competent  to  whose  au- 
thority and  jurisdiction  the  dcfcfidant  is  subject.  Hence  the 
axiom  :  "  Actor  sequitur  forum  rei."  But,  as  we  have  shown 
above,'  when  speaking  of  the  competency  of  tribunals,  a  per- 
son becomes  subject  chiefly  to  the  tribunal  or  forum  or  judge 
of  the  place  where  he  has  his  permanent  dwelling-place  or 
domicilium.  This  forum  of  domicile,  as  we  have  seen  above,* 
is  the  true,  natural,  ordinary,  and  general  forum  or  court  to 
which  a  person  is  amenable. 

1412.  Hence,  in  order  that  a  matrimonial  cause  may  be 
brought  before  the  proper  or  competent  court  or  judge,  the 
residence  or  domicile  of  the  married  couple  must  be  princi- 
pally taken  into  consideration.  As  the  wife  contracts  the 
domicile,  and  therefore  becomes  subject  to  the  forum  or 
judge  of  her  husband,  it  follows  that  a  married  couple,  so  far 
as  matrimonial  causes  are  concerned,  falls  under  the  jurisdic- 
tion of  the  bishop,  in  whose  diocese  the  husband  has  his 
domicile  or  residence.* 

141 3.  In  the  case,  however,  where  the  parties  have  been 
legitimately  separated  by  a  divorce  a  thoro  et  mensa,  the  com- 
petent judge  is  the  bishop  of  the  diocese  where  the  party 
against  whom  the  proceedings  are  taken  is  domiciled.  We 
say,  legitimately  separated ;  for  if  the  separation  is  caused  by 
malicious  desertion  on  the  part  of  either  of  the  married  cou- 
ple, then  the  bishop  of  the  diocese  in  which  the  party  thus 
deserted  has  his  or  her  domicile  is  the  competent  judge. 
For,  wherever  the  deserting  party  may  be,  he  remains  subject 
to  the  bishop  of  that  diocese  where  he  had  his  domicile  at 
the  time  of  the  desertion,  since  the  domicile  is  not  changed 
by  such  desertion.*     Finally,  we  observe  that  once  a  party  has 

'  Supra,  n.  784.  *  Supra,  n.  784. 

*  Mansella,  1.  c,  p.  174,  n.  6.  •*  Mansella,  1.  c,  pp.  172-174. 


Matrimonial  Causes,  also  in  the  U.  S.  375 

been  duly  cited  for  trial  or  the  hearing  in  a  matrimonial  cause, 
it  makes  no  difference  whether  he  changes  his  domicile  or  not. 
He  remains  subject,  so  far  as  concerns  the  cause  in  which  the 
citation  was  issued,  to  the  bishop  or  judge  who  issued  the^ 
citation.' 

1414.  The  bishop  is  perfectly  free  to  sit  personally  in 
court  in  matrimonial  causes,  or,  as  we  have  seen,  to  appoint 
others  to  do  so  in  his  stead.  As  a  matter  of  fact,  in  the 
greater  part  of  Europe,  as  has  been  already  stated,  bishops 
do  not  personally  take  cognizance  of  such  causes,  but  appoint 
others — v.g.,  their  vicars-general,  or  a  collective  body  of 
judges — to  adjudicate  upon  them.  Thus  Cardinal  Kutschker, 
in  his  celebrated  work  on  the  "  Canon  Law  of  Marriage,"  ^ 
informs  us  that  in  Austria  the  bishop,  in  the  hearing  and  de- 
ciding of  matrimonial  causes,  makes  use  of  a  special  eccle- 
siastical tribunal  or  court,  consisting  of  a  president  and  of 
assessors,  whose  number  shall  not  be  less  than  four  nor 
more  than  six,  and  who  shall  have  a  decisive  voice." 

141 5.  The  bishop  is  at  liberty  to  give  these  delegated 
judges  or  tribunals,  whether  consisting  of  individuals  or  col- 
lective bodies,  power  either  to  hear  and  pronounce  final  sen- 
tence upon  the  case,  or  only  to  hear  or  try  it,  and  to  reserve 
to  himself  the  final  sentence.  Here  we  may  remark  that  these 
collective  bodies  of  judges,  which  we  have  just  mentioned, 
are  greatly  favored  both  by  the  letter  and  by  the  spirit  of  the 
law  of  the  Church.*  Thus  Pope  Celestine  HI.  says:  "Ilia 
quippe  fuit  antiqua  Sedis  Apostolicae  provisio,  ut  hujusmodi 
causarum  recognitiones,  duobus  quam  uni,  tribus  quam 
duobus  libentius  delegaret."  *  The  reason  is  thus  stated  in 
the  words  immediately  following  the  above :  "  Cum  (sicut 
canones  attestantur)  integrumsit  judicium,  quod  plurimorum 
sententiis  confirmatur."  * 

141 6.  As  in  other  trials  or  causes,  so  also  in  those  relating 

'  Mansella,  n.  7;  supra,  n.  lOoS.     *  Eherecht,  vol.  v.,  p.  482.     "  lb.,  p.  485. 
4  lb.,  pp.  482,  484.  "  Cap.  21,  de  Off.  del.  (i.  29).  «  lb. 


376  Ecclesiastical  Civil  T7'ials  Peculiar  to 

to  marriages,  exception  can  be  taken  to  the  judge,  whether 
he  be  the  bishop,  or  other  person  appointed  by  him  to  take 
cognizance  of  such  causes.  As  we  have  already  seen,  when 
an  exception  is  made  against  an  ecclesiastical  judge,  arbitra- 
tors must  be  chosen  to  decide  whether  such  exception  has 
any  foundation  or  not.  Cardinal  Kutschker  holds  that  an 
exception  taken  against  one  of  the  members  of  a  collective 
judicial  body  is  decided  by  that  body  itself,  and  not  by  arbi- 
trators.' 

141 7.  Ecclesiastical  tribunals  for  matrimonial  causes  in  the 
United  States. — In  the  United  States,  matrimonial  causes,  even 
where  they  involve  the  validity  or  nullity  of  a  marriage 
already  contracted,  are,  as  a  rule,  decided  by  the  bishop,  or 
also  sometimes  by  the  rector  of  the  parties,  without  any  for- 
mality whatever.  Only  in  one  or  two  dioceses  is  a  defender 
of  marriage  made  use  of,  in  cases  where  there  is  question  of 
the  validity  or  nullity  of  a  marriage.  This  state  of  things  is 
owing  mainly  to  the  missionary  condition  of  the  country. 
Now,  however,  that  this  missionary  character  has  given  way, 
at  least  in  most  of  the  "Eastern  and  in  many  of  the  Western 
States,  to  a  fuller  and  more  perfect  development  of  our  eccle- 
siastical organization,  which  admits  of  a  better  observance  of 
the  general  law  of  the  Church,  it  would  seem  practicable  to 
carry  out,  at  least  in  substance,  the  general  law  of  the  Church, 
as  now  prevalent,  in  regard  to  the  hearing  of  matrimonial 
causes,  especially  when  there  is  question  of  the  validity  of  a 
marriage. 

141 8.  This  seems  still  more  feasible,  from  the  fact  that 
we  have  now  regularly  organized  ecclesiastical  courts  estab- 
lished in  every  diocese,  according  to  the  Instruction  of  the 
S.  C.  de  Prop.  Fide,  dated  July  20, 1878.  To  these  tribunals, 
it  is  true,  only  criminal  and  certain  disciplinary  causes,  as 
set  forth  in  the  Instruction  and  its  authentic  interpretation 

'  Canon  Law  of  Marr.,  vol.  v.,  p.  556. 


Matrimonial  CaiLscs,  also  in  the  U.  S.  377 

or  supplement,  must  be  referred.  But  it  appears  equally  cer- 
tain, as  we  have  already  seen,  that  matrimonial  causes  may 
also  be  committed  to  them.  For  the  bishop,  as  we  have 
shown,  is  at  libert}^  to  appoint  either  a  single  person,  or 
several  persons  acting  as  a  collective  body,  to  hear  matri- 
monial causes.  The  trial  could  also  be  conducted  substan- 
tially in  the  manner  prescribed  in  said  Instruction. 

1419.  II.  The  secretary. — In  all  judicial  proceedings,  sum- 
mary as  well  as  ordinary  or  formal,  whether  in  civil  or 
criminal  causes  or  matters,'  and  consequently  also  in  matri- 
monial causes  or  trials,  especially  when  there  is  question  of 
the  validity  of  a  marriage  already  contracted,  a  secretary 
must  be  present,  and  take  down  the  minutes  of  the  proceed- 
ings.'' These  minutes  should  contain  chiefly  the  names  of 
the  persons  present — namely,  of  the  judge  or  judges,  of  the 
defender  of  the  marriage,  of  the  husband  and  wife  whose 
marriage  is  under  examination  ;  the  chief  or  essential  for- 
malities of  the  trial,  especially  the  documents  read  before 
or  submitted  to  the  court ;  the  depositions  of  the  married 
couple  and  other  witnesses  ;  all  decisions,  interlocutory  or 
final."  The  greatest  care  should  be  taken  by  the  secretary 
or  notary  to  record  accurately  and  verbatim  both  the  ques- 
tions or  cross-questions  proposed  to  the  married  couple  or 
the  witnesses,  and  the  answers  thereto  by  these  parties.' 

1420.  It  is  superfluous  to  remark  here,  that  also  in  the 
United  States,  in  matrimonial  trials  or  processes,  a  secretary 
should  be  present  at  the  proceedings,  whose  duty,  as  above 
described,  it  is  to  keep  a  careful  and  correct  record  of  the 
proceedings. 

142 1.  III.  Defender  of  marriage. — Besides  the  judge  and 
the  secretary,  a  third  official,  called  the  defender  of  marriage 
{defensor  matrimonii'),  necessarily  forms  part  of  the  matrimo- 

'  Cap.  II  X,  deProbat.  «  Cf.  Instr.  S.  C.  C,  22  Aug.,  1840,  §  Praefinita  die. 

»  Cf.  cit.  Insir.  S.  C.  C,  Kutschker,  1.  c,  p.  534. 
*  Cf.  cit.  Instr.,  §  Cum  itaque. 


^yS  Ecclesiastical  Civil  Trials  Peculiar  to 

nial  court  in  certain  cases.  We  say,  in  certain  cases — namely, 
in  those  cases  where  there  is  question  of  the  validity  or 
nullity  of  a  marriage  already  contracted}  In  other  matrimo- 
nial causes — v.g.,  where  there  is  question"  of  the  validity  of  a 
marriage  about  to  be  contracted,  or  of  separation  a  incnsa  et  tJioro, 
— this  defender  is  not  required.  Of  the  rights  and  duties  of 
this  official  we  shall  speak  a  little  further  on,  when  we  come 
to  discuss  the  mode  of  procedure  in  causes  of  nullity  of  mar- 
riages. 

1422.  All  the  above  officials  should  first  make  the  profes- 
sion of  faith  of  Pope  Pius  IV.,^  as  amended  by  Pope  Pius 
IX.  on  January  20,  1877,  ^^d  be  also  sworn.^  The  defender 
of  marriage  must  be  sworn  not  only  when  he  is  appointed  to 
his  office,  but  at  the  beginning  of  every  matrimonial  trial. 

Art.  III. 

Form  of  Trial  or  Mode  of  Procedure  to  be  followed  at  present 
in  Matrimotiial  Causes  in  general, 

1423.  By  the  law  of  the  Church,  as  enacted  by  Pope 
Clement  V.  (13 12),  the  trial,  or  judicial  proceedings  in  all 
matrimonial  causes  whatever,  whether  they  relate  to  divorces 
from  bed  and  board,  betrothments,  or  even  to  the  validity 
of  a  marriage  already  contracted,  can  be  summary  {processus 
summarius),  and  therefore  need  not  be  conducted  with  all  the 
formalities  of  the  ordinary  trial,  or  processus  ordinarius." 

1424.  This  law  is  still  in  force,  at  least,  with  regard  to  all 
matrimonial  causes,  where  there  is  no  question  of  the  nullity 
of  a  marriage  already  contracted.  We  sa}'^,  at  least;  for  it  is 
not  clear  whether,  so  far  as  causes  of  nullity  are  concerned, 
it  has  been  altogether  repealed  by  the  constitution  Dei  misera- 

■  Bened.  XIV.,  const.  Dei  miseratione,  §  5  Quod  vero. 

*  Cf.  C.  Trid.,  sess.  25,  cap.  2,  de  Ref. ;  our  Elements,  vol.  i.,  p.  446. 
^  Cf.  Kutschker,  1.  c,  p.  499. 

*  Clem.  Dispendiosam  2,  de  Jud.  (ii.  i);   cf.  Kutschker,  1.  c,  p.  524. 


Matrimonial  Causes,  also  in  the  U.  S.  379 

tione  issued  by  Pope  Benedict  XIV.  on  the  3d  of  November, 
1 741.  It  is  true  that  this  constitution  prescribes  many  for- 
malities to  be  observed  in  causes  of  nuUity  of  marriages 
which  were  not  obligatory  before  that  time.  But  apart 
from  these  special  and  peculiar  formalities,  the  constitution 
in  question  nowhere  states  that  the  trial  cannot  be  summary, 
so  far  as  concerns  the  other  parts  of  the  trial  or  proceedings, 
which  are  not  mentioned.'  Hence  it  would  seem  that  even 
matrimonial  causes  of  nullity  may  at  present  be  tried  sum- 
marily, so  far  as  this  summary  procedure  is  compatible  with 
the  observance  of  the  pecuhar  formalities  laid  down  in  said 
constitution,  as  explained  and  developed  by  the  Sacred  Con- 
gregation of  Council,  in  its  Instruction,  dated  Aug.  22,  1840, 
on  trials  for  matrimonial  causes.  We  have  just  said  may,  not 
must;  for  the  ecclesiastical  judge  not  only  can  observe  the 
formalities  of  ordinary  trials,  together  with  those  prescribed 
in  the  constitution  of  Benedict  XIV.,  but  will,  according  to 
Bouix,^  act  more  prudently  and  safely  by  doing  so,  as  the 
general  context  of  said  constitution  appears  with  sufficient 
clearness  to  suppose  that  the  form  of  trial  in  .matrimonial 
causes  of  nullity  should  be  solemn  or  formal. 

1425.  General  form  of  trial  for  matrimonial  causes  in  the 
United  States. — With  us,  the  form  of  trial  prescribed  by  the 
Sacred  Congregation  of  the  Propaganda,  on  July  20,  1878, 
for  criminal  and  disciplinary  causes  of  ecclesiastics,  might, 
it  seems  to  us,  serve  as  a  model,  at  least  so  far  as  its  general 
outline  is  concerned,  for  the  hearing  of  all  matrimonial 
causes,  even  those  relating  to  nullity.  Besides  in  the  latter 
causes  the  formalities  prescribed  by  Pope  Benedict  XIV. 
should  also  be  observed,  at  least  in  substance. 

1426.  Q.  Here  it  may  be  asked  whether  the  swearing  in 
of  the  officials  of  the  court  and  of  the  witnesses  is  feasible, 
or  even  obligatory,  in  matrimonial  causes  in  the  United 
States  ? 

'  Craisson,  n.  6og2.  '  De  Jud.,  vol.  ii.,  p.  446. 


380  Ecclesiastical  Civil  Trials  Peculiar  to 

A.  Before  answering,  we  observe  that  the  general  rule  is 
that  all  officials  who  take  part  in  judicial  proceedings — that 
is,  not  only  the  judge  himself,  but  also  the  assessors,  secre- 
taries, etc. — must  take  an  oath,  when  they  are  appointed,  to 
discharge  their  duties  faithfully.  Thus  Monacelli  says: 
"  Et  est  etiam  generale,  quod  officiales  in  ingressu  officii-, 
jurare  debeant,  quamvis  sint  solum  assessores,  vel  judices."  ' 
This  holds,  of  course,  also  of  officials  in  matrimonial  causes 
or  trials."  So  far  as  the  defender  of  marriage  is  concerned, 
the  law  of  the  Church  is  particularly  strict  on  this  head.  In 
regard  to  the  swearing  of  witnesses,  the  -general  law  of  the 
Church  is,  that  they  cannot  testify  otherwise  than  under 
oath.^  This  law  is  expressly  declared  by  the  S.  C.  C,  in  its 
Instruction  of  August  22,  1840,  to  be  binding  in  matrimonial 
causes  or  trials  of  nullity.* 

1427.  We  now  answer.  That  it  is  feasible,  with  us,  to  ad- 
minister the  oath  to  the  officials  and  witnesses  under  consid- 
eration, there  can  scarcely  be  any  doubt.  The  only  objection 
that  could  be  urged  would  be  that  our  civil  law  considered 
such  oaths  illegal,  which,  as  we  have  seen,  is  not  the  case. 
Our  civil  law  simply  holds  itself  neutral  with  regard  to  such 
oaths,  neither  recognizing  nor  forbidding  them. 

1428.  Whether  it  is  obligatory  is  a  question  of  greater 
difficulty.  In  favor  of  the  negative,  it  may  be  argued  that 
neither  the  law  of  the  Church  on  this  subject  in  general,  nor 
this  law  as  bearing  on  matrimonial  causes  in  particular,  and 
as  contained  in  the  Constitution  of  Pope  Benedict  XIV., 
dated  Nov.  3,  1741,  and  in  the  Instruction  of  the  S.  C.  C.  of 
August  22,  1840,  is  in  force  with  us,  owing  to  legitimate 
contrary  custom,  sanctioned  by  the  tacit  consent  of  the  Holy 
See.  As  a  matter  of  fact,  the  formalities  prescribed  by  the 
law  of  the  Church,  as  set  forth  principally  in  the  above  Bene- 

'  Form.  Leg.  Pract.,  tit.  7,  form.  10,  n.  2  (Pars  I.,  p.  246). 

*  Kutschker,  1.  c,  p.  499.  *  Supra,  n.  840,  841. 

*  Cf.  Instr.  cit.,  §  Cum  itaque. 


Matrimonial  Caitscs,  also  in  the  U.  S.  381 

dictine  Constitution  and  in  the  Instruction  of  the  S.  C.  C, 
are  not  observed,  at  least  generally,  with  us. 

1429.  On  the  other  hand,  it  may  be  said  in  favor  of  the 
affirmative,  that  the  above  laws  of  the  Church  in  regard  to 
trials  in  matrimonial  causes  obtain  also  with  us,  and  that 
therefore  both  the  officials  of  the  court  and  the  witnesses 
should  be  sworn.  For  the  Holy  See  has  never  expressly  or 
tacitly  sanctioned  the  contrary.  Nor  can  the  opposite  be 
inferred,  so  far  as  the  swearing  of  the  officials  is  concerned, 
from  the  fact  that  the  S.  C.  de  P.  F.,  in  its  Instruction  of 
July  20,  1878,  concerning  Commissions  of  Investigation,  does 
not  require  the  members  of  such  Commissions  to  take  an 
oath.'  For  it  is  by  no  means  certain  that  the  Sacred  Con- 
gregation does  not  require  them  to  take  the  oath.  It  says 
nothing  whatever  about  their  taking  the  oath.  Now  this  very 
silence  may  rightly  be  construed  as  imposing  the  oath  upon 
them.  For  a  general  law — as  the  one  of  swearing  all  offi- 
cials of  courts  is — is  not  abrogated  unless  this  fact  is  ex- 
pressly stated. 

1430.  As  to  the  swearing  of  witnesses  in  matrimonial 
causes,  with  us,  it  may  perhaps  be  said  that  such  swearing 
can  be  orriitted,  owing  to  the  tacit  consent  of  the  Holy  See, 
implied  in  the  Instruction  of  the  Propaganda  of  July  20,  1878, 
which  dispenses  with  the  necessity  of  swearing  witnesses  in 
criminal  and  disciplinary  causes  of  ecclesiastics.  However, 
against  this  it  may  be  argued  that  the  dispensation  from  the 
oath,  being  a  derogation  of  the  common  law,  must  be  strictly 
construed,  and  therefore  not  extended  to  any  causes  other 
than  those  expressly  mentioned. 

'  Cf.  Instr.  cit.,  §  5  Convenientibus. 


3S2  Ecclesiastical  Civil  Trials  Peculiar  to 


Art.  IV. 

Form  of  Trial  or  Mode  of  Procedure  peculiar  to  Divorces  "« 

mensa  et  thoroT 

143 1.  Causes  of  this  kind  are  usually  introduced  into  the 
bishop's  court  for  matrimonial  causes,  by  the  statement  or 
report  of  the  case  sent  by  the  parish  priest  or  rector  of  the 
parties  to  the  bishop.  Before  sending  in  this  statement,  the 
rector  should  use  all  the  means  in  his  power  to  effect  a  recon- 
cihation  between  the  married  couple  applying  for  a  divorce 
a  ifiensa  et  thoro.  This  report  should  summarily  state  the  re- 
quest of  the  plaintiff  for  a  divorce,  the  grounds  upon  which  it 
is  based,  the  character  of  both  parties,  and  in  general  all  the 
particulars  of  the  case. 

1432.  When  all  efforts  at  reconciliation  have  failed,  the 
trial  is  begun  by  the  citation.  In  other  words,  the  defend- 
ant— that  is,  the  husband  or  wife  against  whom  the  divorce 
is  demanded — is  cited  by  the  ecclesiastical  court  for  matri- 
monial causes  to  appear  in  person,  on  a  certain  da}^,  in  said 
court,  for  the  trial  of  the  cause.  This  citation  is  now  usually 
executed  or  served  upon  the  parties  through  their  rector  or 
parish  priest.  If  on  the  appointed  day  the  parties  appear  in 
court,  the  complainant — i.e.,  the  husband  or  wife  seeking  for 
a  divorce — first  states  the  complaint,  and  the  defendant  puts 
in  his  or  her  plea  or  general  denial  of  the  complaint,  and 
thus  the  cause  is  said  to  be  contested — lis  contestata. 

1433.  Observe,  however,  that  this  part  of  the  trial  may 
also  be  conducted  by  letters.  In  other  words,  the  parties, 
instead  of  appearing  personally  in  court  to  lodge  their  com- 
plaint, may  make  their  formal  complaint  and  put  in  their 
plea  by  means  of  letters  to  the  court.  In  this  case  the  com- 
plainant's letter  containing  the  charges  or  formal  complaint 
must  be  communicated  by  the  court  to  the  defendant  to 


Matriino7iial  Catises,  also  in  the  U.  S.  383 

enable  him  to  send  in  his  plea.  Of  course  in  these  as  also  in 
all  the  other  stages  of  the  proceedings,  the  parties  may  be, 
and  in  Europe  are  generally,  assisted  by  counsel. 

1434.  The  next  step  is  the  production  of  the  proofs,  which 
is  the  main  part  of  the  trial.  When  the  defendant  has  denied 
the  plaintiff's  statement,  it  becomes  the  latter's  duty  to  sustain 
them  by  canonical  proofs.  These  usually  consist  principally 
of  the  depositions  of  witnesses.  The  manner  in  which  these 
are  examined  in  trials  for  divorces  is  the  same  as  that  for 
criminal  causes,  which  has  been  already  fully  explained. 
The  defence  next  brings  its  proofs,  witnesses,  documents, 
and  the  like.  Finally,  the  counsel  on  both  sides  sum  up  the 
case,  after  which  the  judge  renders  his  decision,  which  be- 
comes res  judicata  unless  an  appeal  is  lodged  against  it  within 
ten  days.'  From  what  has  been  said,  it  will  be  seen  that  the 
ecclesiastical  summary  trial  for  matrimonial  causes  of  sepa- 
ration a  mcnsa  et  thoro  is  substantially  the  same  with  the  sum- 
mary trial  of  other  causes,  civil  or  criminal. 

1435.  By  whose  authority  a^td  for  what  causes  separation 
from  bed  and  board  can  take  place. — Divorces  are  of  two  kinds, 
as  we  have  shown  elsewhere,'*  namely,  {a)  a  vinculo  from  the 
bond  of  matrimony,  which  totally  severs  the  marriage  tie ; 
[U)  and  a  inensa  et  thoro,  from  bed  and  board,  which  merely 
separates  the  parties  without  dissolving  the  marriage  bond. 
While  the  Church  teaches  on  the  one  hand  that  a  marriage 
which  has  once  been  validly  contracted  and  also  consum- 
mated by  the  faithful  can  never  be  dissolved  as  to  the  vin- 
culum, dxcept  by  the  death  of  one  of  the  married  couple," 
she  also  affirms  on  the  other  that  a  divorce  or  separation 
from  bed  and  board  may  be  allowed  for  varimis  reasons  and 
in  various  cases.  Thus  the  Council  of  Trent  expressly 
teaches :  "  Si  quis  dixerit   Ecclesiam   errare,  cum  ob  multas 

'  Permaneder,  Manual  of  Canon  Law,  §  326-330. 

*  Our  Notes  on  the  Second  Plenary  Council  of  Baltimore,  n.  280.    . 

^  Cf.  Feije,  de  Imp.,  p.  452. 


384  Ecclesiastical  Civil  Trials  Peculiar  to 

caiisas,  separationes  inter  conjuges,  quoad  thorum  seu  cohab- 
itationem  ad  certum  incertumve  tempus  fieri  posse  decernit, 
anathema  sit."  ' 

1436.  As  the  heading  of  this  article  indicates,  we  shall 
here  confine  ourselves  to  the  latter  kind  of  divorce — namely, 
that  from  bed  and  board.  It  can  take  place,  and  that  either 
for  life  or  only  for  a  time,  {a)  by  the  mutual  consent  of  the 
married  .couple — v.g.,  where  both  agree  to  embrace  the 
religious  state,  even  after  they  have  consummated  the  mar- 
riage, or  where  the  party  guilty  of  adultery,  cruelty,  etc., 
voluntarily  assents  to  the  separation  demanded  by  the  inno- 
cent party,  without  obliging  the  latter  to  have  recourse  to 
the  ecclesiastical  judge  to  obtain  the  divorce  ; '  {b)  or  even 
against  the  will  of  one  of  the  married  couple.  Of  this  latter 
separation  we  here  speak.* 

1437-  Q'  What  are  the  causes  or  reasons  that  render  a 
divorce  or  separation  from  bed  and  board  against  the  will  of 
either  of  the  married  couple  lawful  in  the  eyes  of  the  law  of 
the  Church  ? 

A.  We  premise:  The  divorce  in  question  can  take  place 
only  for  grave  causes,  expressed  in  or  approved  by  the 
sacred  canons."  These  causes  are  chiefly  the  following: 
I.  Adultery.  2.  The  falling  into  heresy  or  infidelit}^  of  the 
husband  or  wife.  3.  Danger  of  the  soul's  salvation.  3.  Cruelty 
or  bodily  danger  in  general.  We  observe,  however,  that 
only  in  one  of  these  cases — namely,  in  the  case  of  adultery — 
is  this  divorce  or  separation  perpetual  or  for  life.  In  the 
other  cases  it  is  per  sc  but  temporary,  lasting  only  as  long 
as  the  reason  for  which  it  was  granted  continues  to  exist. 

1438.  We  observe,  secondly,  that,  as  a  rule,  the  separation 
should  be  made  by  authority  of  the  proper  ecclesiastical 
judge  (namely,  the  bishop  to  whom  the  couple  is  subject)  or 


'  C.  Trid.,  sess.  24,  can.  8,  de  Sacr.  matr.  *  Feije,  1.  c,  n.  577. 

^  Cf.  Reiff.,  1.  4,  t,  19,  n.  26,  27.  *  Cf.  Feije,  1.  c,  n.  5: 


Matrimonial  Causes,  also  ifi  the  U.  S.  385 

tribunal,  but  not  by  the  parties  themselves.'  For  nobody  is 
a  competent  judge  in  his  own  cause.  We  say,  "  by  authority 
of  the  proper  ecclesiastical  judge ;''  for  it  is  not  permitted,  at 
least /^r  se,  to  have  recourse  to  the  civil  or  secular  courts 
for  a  divorce,  whether  quoad  vinculum  or  only  quoad  thorum. 
Yet,  as  we  have  shown  in  our  "  Notes  on  the  Second  Plenary 
Council  of  Baltimore," ""  from  Kenrick,'  whose  opinion  is 
indorsed  by  the  illustrious  Feije,*  Catholics,  not  only  in  the 
United  States  but  also  in  Europe,  may  at  times  apply  to  the 
secular  authorities  for  a  divorce,  not  indeed  as  though  they 
recognized  in  the  civil  power  any  authority  to  grant  divorces, 
but  simply  and  solely  for  the  purpose  of  obtaining  certain 
civil  effects,  which  have  been  fully  described  in  our  above 
*'  Notes." 

1439.  It  is  true  that  in  the  United  States  the  ecclesias- 
tical judge — that  is,  in  the  first  instance,  the  Ordinary  or 
the  tribunal,  if  any,  established  by  him — is  rarely  invoked 
by  Catholics  for  divorces  a  thoro.  In  most  cases  they  either 
apply  to  the  civil  court  or  separate  of  their  own  accord. 
They  should  be  instructed  at  least  to  take  the  advice  of  their 
rector  or  confessor.  We  think  that,  considering  our  peculiar 
circumstances,  the  permission  given  by  the  rector  or  con- 
fessor is  usually  sufficient,  at  \ea.st pro  foro  interno.  Rectors 
or  pastors  should  carefully  weigh  cases  of  this  kind  brought 
before  them,  consult  the  bishop,  and,  if  possible,  keep  a 
record  of  the  testimony  collected  by  them. 

1440.  We  now  proceed  to  discuss  the  chief  cases  where 
the  separation  can  take  place  according  to  ecclesiastical  law. 
I.  Adultery. — The  first  and  chief  canonical  cause  for  which 
separation  from  bed  and  board  may  take  place,  and  that  for 
life,  is  adultery  committed  by  either  the  husband  or  wife. 
This  is  plain  from  the  words  of  our  Lord  himself,^  and  from 


'  Kutschker,  1.  c,  p.  652.     ^  N.  284-288.     ^  Theol.  Mor.  Tr.  xxi.,  n.  Ill,  U2. 
4  De  Imp.,  n.  583.  s  Matth.  xix.  g. 


386  Ecclesiastical  Civil  Trials  Peculiar  to 

express  texts  of  canon  law.'  However,  in  order  to  produce 
this  effect,  the  adultery  must  be  («)  formal,  not  merely  mate- 
rial ;  {p)  consummated  ;  [c)  not  condoned,  nor  committed  with 
the  consent,  express  or  tacit  or  at  the  instigation  of  the  other 
party ;  {d)  nor  compensated,  so  to  say,  by  the  adultery  of 
the  party  applying  for  the  divorce.^  Here  we  remark  that 
the  wife  is  not,  as  a  rule,  supposed  to  give  any  tacit  consent 
to  adultery  committed  by  her  husband,  even  when  she  knows 
for  certain  that  he  has  been  guilty  of  this  crime.  The  reason 
is,  that  ordinarily  women  are  afraid  to  reprove  men. 

1441.  (^)  Finally,  the  adultery  must  be  proved,  or  juridi- 
cally established,  before  the  juridical  sentence  of  separation 
can  be  pronounced  by  the  ecclesiastical  judge.'  Now,  as  Pope 
Celestin  HI.  says,  the  copula  carnalis — in  the  present  case, 
adultery — is  proved  either  by  eye-witnesses,  or  in  their  de- 
fault, by  other  means,  such  as  violent  presumptions.*  How- 
ever, canonists  commonly  maintain  that  for  the  purposes  of  a 
divorce  the  proofs  need  not  always  be  absolutely  conclusive, 
but  may  be  based  upon  vehement  or  violent  presumptions, 
which  must  nevertheless  be  of  such  a  nature  as  to  create  a 
moral  certainty.  The  cap.  Litteris  12,  de  Praesiimpt.  (ii.  23), 
clearly  and  fully  explains  the  subject  thus :  "  Nobis  inno- 
tuit,  quod  .  .  .  accusatores  matrimonii  produxerunt  testes 
lirmiter  asserentes,  quod  .  .  .  solum  cum  sola,  nudum  cum 
nuda,  m  eodem  lecto  jacentem,  ea,  ut  credebant"  (testes) 
"  intentione,  ut  earn  cognosceret  carnaliter,  viderunt,  multis 
locis  secretis,  et  latebris  ad  hoc  commodis,  et  horis  electis 
.  .  .  Respondemus  quod  ex  hujusmodi  violenta  et  certa  sus- 
picione  fornicationis,  potest  sententia  divortii  promulgari." 
Note  here,  that  the  violent  indications  of  guilt  in  the  case  are 
not  to  be  taken  on  mere  hearsay,  but  must  be  proved  to  exist, 
by  competent  witnesses.' 

'  Cap.  4,  5,  8,  ed  Divert,  (iv.  ig).  *  Feije,  1.  c,  n.  579. 

^  Cap.  27  X,  de  Test,  et  attest,  (ii.  20).  *  lb. 

'  Schmalzg.,  1.  4,  t.  19,  n.  117. 


Matrimonial  Causes,  also  in  the  U.  S.  387 

1442.  Q.  Can  the  innocent  party  leave  the  adulterous  of 
his  or  her  own  accord  ? 

A.  There  are  two  opinions.  The  first  is  absolutely  in  the 
negative,  and  contends  that  the  separation  can  never  take 
place,  save  by  the  sentence  and  intervention  of  the  ecclesias- 
tical court,'  even  where  the  adultery  is  notorious.*  Thus 
the  can.  Saecularcs  expressly  ordains  that  husbands  who  leave 
their  wives  without  the  intervention  of  the  ecclesiastical 
judge  shall  be  excommunicated.^ 

1443.  The  second  opinion  distinguishes  thus :  It  is  either 
sufficiently  certain  that  adultery  has  been  committed  by  either 
the  husband  or  the  wife,  or  it  is  doubtful.  Where  it  is  doubt- 
ful, the  innocent  party  cannot  separate  from  the  adulterous 
of  his  or  her  own  accord."  If  it  is  certain,  we  must  again  dis- 
tinguish :  The  certainty  is  either  private — that  is,  the  inno- 
cent party  knows  the  crime,  though  only  privately ;  or  it  is 
public — that  is,  the  crime  of  adultery  is  public  and  notorious. 
In  this  latter  case,  the  innocent  party  can  leave  the  adulterous 
of  his  or  her  own  accord.  In  the  first  case — that  is,  where 
the  innocent  party  is  certain  privately  of  the  adultery  of  the 
other  party — the  matter  is  controverted.  But  the  more  com- 
mon opinion  allows  the  innocent  party  to  leave  of  his  or  her 
own  accord,  even  in  this  case,^  at  least  pro  foro  conscientiae, 
and  apart  from  scandal. 

1444.  For  the  rest,  it  is  always  better  that  the  separation 
should  never  take  place  except  by  the  intervention  of  the  eccle- 
siastical court.*  We  remark  here  in  passing,  that  the  innocent 
party  is  never  obliged  to  make  use  of  this  right  of  separat- 
ing from  the  guilty  party,  except  when  the  correction  of  the 
latter  or  the  avoiding  of  scandal  makes  it  really  necessary/ 

1445.  II.  Apostasy  and  heresy. — According  to  the  law  of 

'  Cf.  ib.,  n.  109.       ^  Ex  cap.  6,  de  Adulter,  (v.  i6);  cap.  3,  de  Divert,  (iv.  19). 
^  Can.  Saeculares  i,  Caus.  33,  Q.  2. 

*  Ex  cap.  g,  de  Sponsal.  (iv.  i).  ^  Schmalzg.,  1.  c,  n.  112,  113. 

*  Feije,  de  Imp.,  p.  454.  '  Ib. 


3S8  Ecclesiastical  Civil  Trials  Peculiar  to 

the  Church,  as  in  force  also  with  us,  if  either  of  the  married 
couple  falls  from  the  true  faith  into  heresy  or  infidelity,  the 
other  can  leave  him  or  her,  and  that  even  of  his  or  her  own 
accord,  at  least  when  there  \^  pcriczdiim  in  mora — i.e.,  danger 
to  the  spiritual  welfare  of  the  party  from  delaying  the  sepa- 
ration till  the  ecclesiastical  judge  shall  have  pronounced  his 
sentence  of  separation.' 

1446.  III.  Incitement  to  crime  or  danger  to  the  salvation  of 
the  innocent  party  {pericnhtm  animae). — Where  one  of  the 
married  couple  incites  the  other  to  commit  crime,  whether  it 
be  heresy,  or  any  other  grave  sin, — v.g.,  theft,  sodomy,  etc., 
—so  that  the  latter  cannot  live  with  the  former,  without 
seriously  endangering  his  or  her  salvation,  the  innocent 
party  not  only  can,  but  is  sometimes  bound  to  separate  from 
the  guilty  party.*  This  is  clearly  stated  in  the  can.  Idolatria 
5,  Cans.  28,  Q.  i.  The  heading  itself  of  this  canon  is:  "  Licite 
dimittitur  uxor,  quae  virum  suum  cogere  quaerit  ad  malum." 

1447.  I^-  Bodily  danger  {pericnlnm  corporis). — By  bodily 
danger  we  mean  that  which  proceeds  from  cruel  treatment. 
It  is  certain  that  a  divorce  quod  thorum  may  be  granted  for 
cruelty.^  By  cruel  treatment,  however,  we  mean,  not  every 
ordinary  injurious  word  or  action,  but  threafs  to  kill,  fre- 
quent quarrels,  blows  or  striking,  though  only  if  they  are 
severe,  inflicted  frequently,  and  for  slight  cause.  We  ob- 
serve that  in  this  as  well  as  in  the  foregoing  case,  namely,  in 
the  case  of  spiritual  as  well  as  bodily  danger,  the  separation 
can  be  made  only  by  authority  of  the  ecclesiastical  judge. 
If,  however,  there  is  danger  in  delay,  a  separation  for  a  brief 
space  of  time  can  be  made  by  the  innocent  party,  of  his  or 
her  own  authority.* 

1448.  From  what  has  been  said  it  is  apparent  that,  as  far 
as  possible,  the  divorce  qtiod  thorum  et  cohabitationem  should 

'  Cap.  6,  7,  de  Divort.;  cap.  final.,  de  Convers.  conj.  (iii.  32). 

'  Reiff.,  1.  4,  t.  19,  n.  34. 

2  Cap.  8,  13,  de  Restit.  spol.  (ii.  13).  *  Feije,  1.  c,  p.  455. 


Matrwionial  Causes,  also  in  the  U.  S.  389 

nearly  always  take  place,  not  by  authority  of  the  parties 
themselves,  but  by  authority  of  the  ecclesiastical  judge. 
However,  Giraldus  very  properly  writes  :  "  It  is  true  that 
these  divorces  cannot  take  place,  except  by  the  authority  of 
the  judge,  whenever  there  is  question  of  a  perpetual  divorce. 
But  I  believe  that  they  can  be  made  by  private  authority" 
(of  the  parties  themselves)  "  for  a  time,  because  of  some  im- 
pending serious  danger  to  the  soul  or  body,  which  cannot 
be  averted  otherwise ;  or  also  for  the  purpose  of  seeing 
whether  the  party  guilty  of  adultery  will  show  signs  of  re- 
pentance ;  provided,  however,  that  the  separation  (by  private 
authority)  is  made  without  scandal,  and  by  the  advice  of  the 
confessor,  or  some  other  prudent  person."  ' 


Art.  V. 

Peculiar  Form  of  Trial  in  Matrimonial  Causes  where  there  is 
question  of  dissolving  a  Marriage,  07ice  contracted,  absolutely 
or  ^^  Quoad  Vinculum' — Processus  in  Causis  Nullitatis 
Matrimonii. 

§  I.  General  Features   of  the  Law,  as  in  force  at  the  present 
Day — Defender  of  the  Marriage,  also  in  the  United  States. 

i44g.  In  matrimonial  causes  of  nullity  there  is  question 
not  merely  of  the  rights  of  either  of  the  contending  married 
couple,  but  also,  and  that  chiefly,  of  the  marriage  bond,  and 
therefore  of  preventing  collusion  on  the  part  of  the  married 
couple  for  the  purpose  of  breaking  their  marriage.  Hence 
the  Church,  especially  in  more  recent  times,  has  wisely  or- 
dained that  in  the  hearing  of  matrimonial  causes,  particularly 
those  involving  the  validity  or  nullity  of  a  marriage  already 
contracted,  the  mode  of  procedure  to  be  followed  by  the 
ecclesiastical  judge  should   be  different  from  that  which  is 

'  Giraldi,  Expos.  Jur.  Pont.,  pars,  i.,  sect.  734,  p.  541.     Romae,  i82g. 


390  Ecclesiastical  Civil  Trials  Peculiar  to 

prescribed  for  other  causes,  especially  civil,  falling  under  the 
ecclesiastical  forum. 

1450.  This  peculiar  trial  or  mode  of  procedure,  as  in  force 
at  the  present  ^2^^  all  over  the  world,  is  contained  in  the 
Constitution  of  the  great  Pope  Benedict  XIV.,  beginning 
with  \\\Q.\\oxdiS  Dei Miseratione,  and  issued  November  3,  1741. 
This  celebrated  Constitution  defines  principally  the  rights  and 
duties  of  the  ecclesiastical  judge,  and  of  the  defender  of  the 
marriage,  and  explains  the  force  and  effect  of  the  sentences 
pronounced  by  the  ecclesiastical  judge  in  matrimonial  causes. 
In  order  to  evolve  these  points  more  fully,  and  particularly 
to  point  out  clearly  the  formalities  of  the  trial  of  such  causes, 
the  S.  C.  C.  issued  an  Instruction,  on  the  22d  of  August. 
1840,  in  which  it  lays  down  an  accurate  method  of  conduct- 
ing trials  in  matrimonial  causes  of  nullity.  In  this  admirable 
Instruction,  the  judge,  the  defender  of  the  marriage,  and  the 
secretary  will  find  their  chief  duties  pointed  out  to  them,  and 
the  course  to  be  followed  and  the  steps  to  be  taken  in  the 
causes  in  question  traced  out  and  explained. 

145 1.  These  two  documents — namely,  the  above  Constitu- 
tion of  Benedict  XIV.  and  the  Instruction  of  S.  C.  C.  of  1840 
— form  at  the  present  day  the  law  of  the  Church  concerning 
the  trial  or  mode  of  procedure  to  be  followed  all  over  Chris- 
tendom in  matrimonial  causes  of  nulHty.'  .Where  circum- 
stances do  not  allow  of  the  full  and  complete  observance  of 
each  and  every  item  prescribed  in  the  above  Constitution  of 
Benedict  XIV.,  as  authenticall}^  explained  by  the  Instruction 
of  the  S.  C.  C.  of  1840,  a  dispensation  can  be  obtained  from 
the  Pope  to  that  effect.  In  fact,  the  Holy  See  frequently 
grants  such  dispensation,  and  permits  the  trial  in  causes  of 
nullity  to  be  conducted  informally — that  is,  without  the 
observance  of  all  the  various  judicial  formalities  prescribed 
in  the  above  documents.     But  the  Holy  See  always  insists, 

'  Mansella,  1.  c,  p.  182. 


Matrimonial  Causes,  also  in  the  U.  S.  391 

even  when  it  gives  the  dispensation,  on  the  observance  of 
the  substa7itial  iorxx\2X\\XQS  required  by  the  above  documents 
and  especially  on  the  presence  of  the  defender  of  the  mar- 
riage.' 

1452.  We  shall  now,  before  proceeding  to  describe  the 
formalities  of  the  trial  in  matrimonial  causes  of  nullity,  give 
a  synopsis  of  the  chief  features  of  the  Constitution  Dei  Misera- 
tione  of  Pope  Benedict  XIV.  In  the  preamble  of  the  Con- 
stitution the  great  Pontiff  deplores  the  facility  and  haste 
with  which  marriages  were  being  pronounced  invalid  in 
some  of  the  ecclesiastical  courts,^  and  the  scandal  thus  given.' 
Next,  the  causes  of  this  abuse  are  enumerated.  Among  these 
causes  the  Pope  points  out  these:  ia)  That  certain  ecclesias- 
tical judges  pronounce  marriages  invalid  upon  slight  or  no 
investigation ;  {U)  that  frequently  but  one  of  the  married 
couple — namely,  the  husband  or  wife  who  demanded  the 
nullity — appeared  at  the  trial,  the  other  failing  to  appear  and 
defend  the  marriage.  Whence  it  happened  that  the  party  de- 
manding the  annulment  of  the  marriage  easily  obtained  a 
sentence  of  nullity,  and  was  thus  enabled  to  remarry. 

1453.  {c)  That  even  where  both  appeared  for  trial,  it  often 
came  to  pass  that  if  the  sentence  declared  the  marriage  in- 
valid, neither  of  them  appealed  to  the  higher  (ecclesiastical) 
court,  and  that  either  because  they  were  in  collusion  with 
each  other  for  the  purpose  of  having  their  marriage  declared 
invalid,  or  because,  even  where  they  had  acted  in  good  faith, 
the  defendant  or  party  that  had  sustained  the  validity  of  the 
marriage,  once  sentence  of  invalidity  was  rendered,  failed  to 
appeal — v.g.,  because  he  or  she  was  destitute  of  the  money 
or  other  means  of  prosecuting  the  appeal,  or  also  because 
he  or  she  underwent  a  change  of  mind  on  the  subject." 

1454.  To  remedy  these  grave  evils  the  Pope  lays  down 

'  Cf.  Kutschker,  1.  c,  vol.  v.,  p.  525.  ^  Const.  Dei  Miseratione,  §  i. 

^  lb.,  §  2.  ''Const.  Dei  Miseratione  cil.,  §  3. 


392  Ecclesiastical  Civil  Trials  Peculiar  to 

the  following  enactments,  which  constitute  the  law  of  the 
Church  in  this  matter  at  the  present  day,  all  over  Christen- 
dom, and  also,  at  least /^r  5^,  in  the  United  States:  i.  Each 
and  every  Ordinary  of  the  whole  Catholic  world  shall  appoint 
in  his  diocese  a  defender  of  marriage  {matrimonii  defensor), 
who  shall,  if  possible,  be  an  ecclesiastic,  and  skilled  in  canon 
law,  and  of  unblemished  character.'  2.  This  defender  is  to 
be  regarded  tanqiiam  pars  necessaria  ad  judicii  validitatem,  in 
all  cases  where  there  is  question  of  the  validity  or  nullity  of 
marriages — that  is,  in  all  cases  where  there  is  question  of 
annulling,  v.g.,  because  of  an  alleged  annulling  impediment, 
a  marriage  already  contracted,  but  not  where  there  is  question 
of  the  validity  of  a  marriage  about  to  be  contracted.  Hence 
all  proceedings  in  such  causes  of  nullity  are  null  and  void  if 
the  defender  of  the  marriage  is  not  properly  cited  to  act  in 
the  case,  and  is  therefore  absent.  Nay,  he  must  be  cited,  not 
merely  once, — namely,  at  the  beginning  of  the  trial, — but  at 
every  subsequent  stage  or  judicial  act,  and  any  act  whatever 
of  the  court  to  which  he  is  not  called  is  of  no  effect  what- 
ever. Thus  Pope  Benedict  XIV.  expressly  says:  "  Quae- 
cunque  eo"  (defensore)  "  non  legitime  citato,  in  judicio 
peractae  fuerint,  nulla  declaramus." " 

1455.  3.  Now,  what  are  the  chief  duties  of  this  defender  of 
the  marriage  ?  {a)  He  is  strictly  bound  to  be  present  at  all 
the  proceedings  in  the  case.  In  fact,  he  is  a  necessary  or 
legal  co-defendant  in  every  cause  of  nullity,  and  as  such  must 
assist  at  all  the  proceedings  at  which  the  real  defendant^ — 
that  is,  the  husband  or  wife  against  whom  the  annulment  of 
the  marriage  is  asked — has  a  right  to  assist,  and  that  even 
when  the  latter  is  present  in  person.  Hence  the  defender  is 
obliged  to  be  present  at  the  examination  of  witnesses,  etc." 
But  he  is  moreover,  f;r  officio,  r  necessary  member  and  official 
of  the  court  itself,  and  as  such  has  the  right  and  duty  to 

'  Const.  Dei  Miseratione  cit.,  §  5.  *  lb.,  §  7.  ^  jb    g§  g,  7. 


Matrimonial  Caztscs,  also  in  the  U.  S.  393 

assist  at  all  the  sessions  or  meetings  of  the  court,  and  to  have 
free  access  at  all  times  to  the  documents  and  testimony  of 
either  of  the  contending  parties.' 

1456.  (U)  He  should  carefully  examine  the  facts  in  the 
case,  and  both  orally  and  in  writing  submit  to  the  court 
all  possible  proofs  and  arguments  in  favor  of  the  validity 
of  the  marriage,  and  in  rebuttal  of  the  proofs  and  argu- 
ments advanced  by  the  party  seeking  to  have  the  marriage 
set  aside.*  {c)  He  must,  as  we  have  seen,  take  an  oath 
to  fulfil  his  duties  faithfully,  and  that  not  only  when  he  is 
first  appointed,  but  every  time  he  acts  in  a  cause.'  He  is 
appointed  by  the  bishop,  and  removable  by  him  for  cause.* 

1457.  (^)  If  in  the  first  instance  the  marriage  is  sustained 
as  valid,  he  should  not  appeal.  But  if  the  contrary  happens, 
he  is  bound  to  appeal,  even  though  the  party  against  whom 
the  sentence  was  pronounced  does  not  wish  to  appeal.  If 
the  court  of  the  second  instance,  like  that  of  the  first,  also 
pronounces  the  marriage  invalid,  he  need  not  appeal  again 
unless  he  thinks  proper.  We  say,  unless  he  thinks  proper;  for 
he  may  and  should  appeal  a  second  time,  namely,  to  the 
Holy  See,  where  he  believes  that  he  cannot  conscientiously 
acquiesce  in  the  sentence  of  nullity  pronounced  by  the  court 
of  the  second  instance — v.g.^  because  the  sentence  seems  to 
him  manifestly  unjust  or  invalid,  or  becaUvSe  it  reverses  the 
sentence  declaring  the  marriage  valid  as  given  in  the  first 
instance." 

1458.  So  far  as  the  husband  and  wife  in  the  case  are  con- 
cerned, whose  marriage  is  being  called  in  question,  they  are 
forbidden,  on  pain  of  incurring  all  the  penalties  established 
by  the  Church  against  polygamists  and  others,  who  contract 
marriage  against  the  prohibition  of  the  Church,  to  consider 
their  marriage  as  dissolved,  and  pass  to  a  new  marriage,  pend- 

*  Instr.  S.  C.  C,  22  Aug.,  1840,  §  Hisce  praemissis,  in  fine. 

*  Const,  cit.,  §  6;  Kutschker,  1.  c,  p.  494.  ^  Const,  cit.,  §  7. 

*  lb.,  §  5.  6  lb.,  §  II. 


394  Ecclesiastical  Civil  Trials  Peculiar  to 

ing  any  of  the  above  appeals.'  Only  after  their  marriage  has 
been  declared  invalid  twice, — that  is,  both  in  the  first  and 
second  instance, — can  they  remarry,  provided  the  defender 
of  the  marriage  does  not  appeal  also  from  the  second  deci- 
sion. In  the  latter  case  they  must  wait  for  the  issue  of  the 
trial  in  the  third  and  last  instance.'' 

1459.  However,  it  must  be  observed  that  even  when  the 
marriage  has  been,  as  above  stated,  twice  declared  invalid, 
and  the  parties  have  remarried,  it  is  allowed  at  any  time 
afterwards,  no  matter  how  many  years  may  have  elapsed,  to 
produce  new  proofs  {i.e.,  proofs  which  have  been  either 
newly  discovered  or  were  not  submitted  in  the  former  trials, 
either  because  of  collusion,  ignorance,  etc.)  in  the  ecclesias- 
tical court  to  show  that  the  marriage  was  valid.'  For  matri- 
monial causes  of  nullity  never  become  res  judicatae.''  The 
only  exception  is,  where  both  of  the  married  couple  are  dead, 
and  thirty  or  forty  years  afterwards  the  legitimacy  of  their 
children  is  impugned,  on  the  ground  that  their  marriage  was 
null  and  void.' 

1460.  This  is  a  summary  of  the  regulations  made  by  Pope 
Benedict  XIV.,  in  his  renowned  constitution  Dei  Miseratione. 
Hence,  whenever  it  is  sought  to  have  a  marriage,  which  has 
been  already  contracted,  dissolved  because  of  an  alleged 
annulling  impediment, — v.g.,  consanguinity,  affinity, — the  de- 
fender of  the  marriage  has  to  be  called  to  the  proceedings, 
as  above  stated,  and  that  on  pain  of  nullity  of  the  trial.  We 
have  seen  above,"  that  this  constitution,  especially  so  far  as  re- 
gards the  defender  of  the  marriage,  is,  generally  speaking,  not 
observed  in  the  United  States.  We  have  also  seen  that,  at 
least /^r  se,  this  Benedictine  constitution  is  obligatory  in  this 
country.'     The  Holy  See,  moreover,  as  we  have  shown,  while 

I  Const,  cit.,  §§9,  II.  «Ib..§ii.  Ub.,  §  II. 

*  Cap.  7,  de  Sent.  (ii.  27);  ib.  Glossa,  v.  Permanere. 

*  Schmalzg.,  1.  4,  t.  18,  n.  27.  *  Supra,  n.  1407,  1417. 
■"  Supra,  n.  1428,  1429. 


Matrimo7iial  Causes,  also  in  the  U.  S.  395 

it  frequently  grants  a  dispensation  (especially  for  countries 
situate  like  ours)  by  which  it  allows  matrimonial  causes  of 
nullity  to  be  tried  informally,  nevertheless  always  insists  on 
the  observance  of  the  substantial  formalities  of  the  above  con- 
stitution— namely,  on  the  presence  of  the  defender  of  the  mar- 
riage.' From  this  it  would  seem  inferable  that  also  in  the 
United  States  a  defender  of  the  marriage  ought,  if  possible, 
to  be  appointed  in  each  diocese,  or  at  least,  when  a  case 
comes  up,  and  to  be  heard  in  all  causes  of  nullity,  even  when 
the  proceedings  cannot  be  formal. 

§  2.    Various  Stages  of  the  Trial. 

1461.  Having  thus  far  pointed  out  the  rights  and  duties 
of  the  judge,  secretary,  and  defender  of  the  marriage,  we 
shall  now  briefly  describe  the  trial  itself,  or  its  various  for- 
malities and  stages.  These  formalities  are  laid  down  in  the 
above  quoted  Instruction  of  the  S.  C.  C,  of  August  22,  1840, 
which  is  obligatory  all  over  Christendom,  and  constitutes  the 
law  at  present  in  force  everywhere,  and  consequently /ifr  se 
also  in  this  country.  The  trial  for  matrimonial  causes  involv- 
ing the  validity  of  marriages  already  contracted  (of  which 
alone  we  here  speak),  as  outlined  in  this  Instruction,  is  con- 
ducted in  the  following  manner. 

1462.  When  the  ecclesiastical  judge  is  about  to  take  cog- 
nizance of  a  marriage  which  is  alleged  to  have  been  con- 
tracted with  an  annulling  impediment,  he  shall  receive  the 
complaint  or  accusation  of  the  nullity  of  the  marriage  (accu- 
satio  matrimonii^,  that  is,  the  demand  for  its  annulment,  only 
from  those  persons  who  are  qualified  by  ecclesiastical  law 
to  make  the  demand.  For,  as  we  shall  see,  in  the  case  of 
some  impediments  the  married  couple  alone  has  the  right  and 
is  allowed  to  demand  the  annulment.     In  the  case  of  others, 

'  Cf.  Kutschker,  1.  c,  vol.  v.,  pp.  520,  524. 


39^  Ecclesiastical  Civil  Trials  Peculiar  to 

the  parents  and  relatives,  or  any  other  persons  whatever,  can 
make  the  demand  ;  finally,  in  the  case  of  other  impediments, 
the  judge  himself  can  and  is  sometimes  even  obliged  to  in- 
quire ex  officio  into  the  validity  of  the  marriage.  The  accusa- 
tion of  the  marriage  should  be  made  in  writing,  no  matter 
whether  it  is  made  by  the  married  couple  itself,  or  others.* 
In  receiving  this  accusation,  the  ordinary  or  judge  should 
also  endeavor  to  obtain  from  the  plaintiff,  or  accusing  party, 
a  full  statement  of  the  case,  together  with  a  list  of  the  wit- 
nesses and  of  the  other  proofs." 

1463.  Having  thus  received  the  complaint  or  accusation 
of  the  marriage,  the  bishop  appoints  {a)  another  ecclesiastic 
— v.g.,  his  vicar-general,  or  some  other  worthy  and  learned 
ecclesiastic — to  act  as  judge  for  him,  unless  he  has  already 
permanently  appointed  one  beforehand,  or  prefers  to  adjudi- 
cate the  cause  in  person ;  {b)  a  secretary  ;  (r)  and  a  defender 
of  marriage.^  Of  course,  where  these  officials  are  appointed 
permanently  in  a;  diocese,  it  is  unnecessary  to  make  these  ap- 
pointments each  time  a  cause  presents  itself. 

1464.  The  matrimonial  court  being  thus  organized,  the 
trial  begins  with  the  examination  of  the  plaintiff  and  defend- 
ant, and  other  witnesses.  The  order  in  Avhich  these  various 
persons  are  examined,  as  laid  down  in  the  above  Instruction, 
is  as  follows  :  First,  the  plaintiff — that  is,  the  spouse  or  other 
person  who  demands  the  annulment  of  the  marriage  or  con- 
tends that  it  is  null — is  examined  or  heard,  and  that  under 
oath,  and  in  the  presence  of  the  judge  or  his  deputy,  the 
defender,  and  the  secretary.*  The  mode  of  examination  is 
this:  The  defender  of  the  marriage  having  previously  pre- 
pared written  questions  or  interrogatories,  hands  them  sealed 
to  the  judge  or  secretary  in  court,  and  in  the  presence  of  the 
complainant.*      Next,  at  the   request   of   the  defender,  the 

'  Instr.  S.  C.  C,  22  Aug.,  1840,  §  Hisce  praemissis.  '  Mansella,  1.  c,  p.  184. 
•Supra,  n.  1421.         *  Instr.  S.  C.  C.  cit.,  g  Praefinita.  ^  lb.,  §  Cum  itaque. 


Matrimonial  Causes,  also  i^i  the  U.  S.         397 

judge,  or  by  his  command  the  secretary,  opens  them,  and 
puts  them  one  by  one  to  the  plaintiff.  The  judge  himself,  as 
also  the  defender,  may  ex  officio  add  other  questions  in  the 
course  of  the  examination,  as  he  sees  fit.  The  secretary  or 
notary  will  carefully  write  down,  and  that  verbatim,  both  the 
questions  and  the  answers  thereto.' 

1465.  When  the  examination  is  over,  the  secretary  will 
read  aloud,  in  a  clear  and  intelligible  voice,  the  deposition  or 
answers  of  the  plaintiff,  and  the  latter  shall  have  the  right  to 
change  or  explain  his  answers  as  he  pleases.  Then  he  shall 
again  swear  that  he  has  told  the  truth,  and  that  he  will  not 
divulge  either  the  interrogatories  put  to  or  the  answers  given 
by  him  before  the  publication  of  the  proceedings."  Finally, 
he  shall  sign  his  deposition,  and  if  he  cannot  write,  put  a 
cross  (-|-)  in  the  place  of  his  name.  Afterwards  the  judge,, 
the  defender,  and  the  secretary  affix  their  signatures.^ 

1466.  The  plaintiff  should  in  his  examination  give  a  clear 
and  full  expose  oi  the  case,  or  of  the  grounds  of  his  demand 
for  the  annulment  of  the  marriage,  indicate  the  various  kinds 
of  proofs  by  which  he  believes  he  can  sustain  his  demand, 
state  all  the  circumstances  which  he  either  knows  of  his  own 
personal  knowledge  or  has  heard  from  others,  and  if  he 
affirms  that  he  can  prove  his  assertions  by  the  testimony  of 
witnesses,  he  should  name  them,  and  they  should  afterwards 
be  examined.  Whether  one  of  the  married  couple  demands 
the  annulment,  or  none  of  them,  both  must  always  be  cited 
and  heard  during  the  trial,  in  order  that  they  may  defend 
their  rights,  and  rebut  any  proofs  brought  against  them." 

1467.  The  spouse  or  plaintiff  thus  examined  can,  either 
immediately  after  his  or  her  examination,  or  later  on  in  the 
course  of  the  trial,  though  before  the  publication  of  the  pro- 
ceedings, submit  interrogatories  to  the  judge,,  on  which  the- 
defendant  or  spouse  against  whom  the  annulment  of  the  mar- 

1  Instr.  S.  C.  C.  cit.,  §  Interim.  '  lb.,  §  Si  examen. 

*  Mansella,  1.  c,  p.  i86.  ^  -[^ 


398  Ecclesiastical  Civil  Trials  Peculiar  to 

riage  is  sought  shall  be  examined  by  the  judge,  in  the  pres- 
ence of  the  defender  of  the  marriage.  And  if,  in  turn,  the 
defendant  wishes  also  to  submit  questions  to  be  put  to  his  or 
her  spouse  who  is  the  plaintiff,  the  judge  shall  receive  them, 
and  put  them  to  the  plaintiff,  in  the  presence  of  the  defender.' 
This  mode  of  examination  is  to  be  observed  in  all  the  other 
examinations  of  witnesses.  All  the  persons  in  the  case — 
that  is,  the  married  couple  as  well  as  the  witnesses — are 
examined  apart  from  each  other  and  under  oath.* 

1468.  After  the  examination  of  the  plaintiff  or  spouse  who 
seeks  the  annulment  of  the  marriage  follows  that  of  the  de- 
fendant— that  is,  of  the  spouse  against  whom  it  is  sought  to 
have  the  marriage  declared  invalid.  This  examination  is,  as 
we  have  seen,  conducted  in  the  same  manner  with  that  of 
the  plaintiff  above  described.  The  questions  put  to  the 
defendant  may  be  either  the  same  with  those  put  to  the 
plamtiff,  or  others,  as  the  defender  of  the  marriage  may  see 
fit.' 

1469.  Next  comes  the  examination  of  the  witnesses.  The 
witnesses  for  the  plaintiff  are  examined  first;  those  of  the 
defence  afterwards.  The  mode  in  vhich  the  witnesses  are 
examined  is  the  same  with  that  of  the  plaintiff  and  defendant 
as  described  above."  The  married  couple  shall  be  free  to 
produce  any  witness  of  good  character  they  choose.  When 
the  witnesses  have  all  been  examined,  and  the  other  proofs, 
such  as  instruments, — v.g.,  parochial  registers,  private  letters, 
etc.,— submitted,  the  publication  of  the  proceedings  takes 
place.'  The  defence  may  then  submit  new  proofs  and  argu- 
ments." Finally,  the  parties— the  plaintiff  and  defender- 
sum  up  the  case,  and  the  judge,  after  consulting  canonists 
and  theologians,  pronounces  final  sentence.^ 

1470.  Whether  this  trial  or  mode  of  procedure  can  be 

'  Instr.  S.  C.  C,  22  Aug.,  1840,  §  Poterit.  *  Mansella,  p.  185. 

'  Instr.  cit.,  §  Expleto.     *  lb.,  §  Deinde  procedendum.     '  Cf.  supra,  n.  855. 
«  Cf.  supra,  n.  856-859.  '  Instr,  cit.,  §  Locus  erit. 


Matrimonial  Causes,  also  in  the  U.  S.  399 

conducted  in  a  summary  manner,  so  far  as  this  is  compatible 
with  the  above  formalities,  we  have  seen  already.'  We  also 
observe  that  the  trial  as  above  described  may  and  usually  is 
preceded  and  inaugurated  by  a  preliminary  investigation. 
The  object  of  the  latter  is  to  ascertain  as  far  as  possible  all 
the  facts  in  the  case,  and  thus  to  enable  the  judge  to  know 
whether  he  is  justified  in  going  on  with  the  trial  or  hearing 
of  the  case. 

147 1.  This  preliminary  trial  usually  consists  in  the  informal 
examination  of  the  married  couple,  of  the  witnesses  on  both 
sides,  and  ot  all  the  other  evidence  bearing  on  the  case.  We 
say,  informal,  etc.;  for  the  proceedings  are  informal,  and  the 
judge  is  not  bound  to  observe  any  judicial  formalities.  The 
minutes  of  the  proceedings,  however,  should  be  carefully 
kept  by  the  secretary.  Generally,  the  judge  does  not  con- 
duct this  preliminary  examination  in  person,  but  commissions 
some  other  person  to  do  it  and  to  report  to  him."  As  in  the 
preliminary  trial  for  a  simple  divorce  a  mensa  et  toro,  so  also 
in  the  preliminary  trial  for  the  annulment  of  the  marriage, 
the  parish  priest  or  rector  of  the  parish  of  the  parties  whose 
marriage  is  being  called  in  question  is  requested  by  the 
bishop's  court  for  matrimonial  causes  to  forward  a  statement 
of  the  case  to  the  court. 

1472.  As  a  rule,  a  similar  informal  preliminary  trial  {pro- 
cessus informativus)  takes  place,  as  has  been  shown,  also  in 
causes  of  divorce  a  mcnsa  et  toro.  However,  the  effect  of 
such  preliminary  investigation  is  sometimes  different  in 
causes  of  nullity  from  its  effect  in  causes  of  mere  separation 
a  mensa  et  toro.  For  in  the  latter  case,  if  the  judge  discovers 
sufficient  evidence  on  the  preliminary  trial,  he  may  forthwith 
pironounce  sentence ;  whereas  in  the  former  case — i.e.,  in 
causes  of  nullity — the  real  or  formal  trial,  as  traced  out 
above,  cannot  be  omitted. 

*  Supra,  n.  1424.  *  Card.  Kutschker,  1.  c,  vol.  v.,  pp.  763,  765,  767, 


400  Ecclesiastical  Civil  Trials  Peculiar  to 

§  3.  Formalities  to  be  observed  in  regard  to  the  Annulment  of  a 
Marriage  which  is  ratiim  not  co7tsummatum. 

1473.  A  marriage,  though  vaHdly  contracted,  if  not  yet 
consummated,  can  be  dissolved  in  two  ways:  {a)  by  one  of 
the  parties  entering  a  religious  community  approved  by  the 
Holy  See,  and  taking  solemn  vows ;  *  {b)  by  dispensation  of 
the  Supreme  Pontiff.^  Here  we  observe  with  Bouix,  that 
petitions  are  not  unfrequently  addressed  to  the  Holy  See 
for  such  dispensations. 

1474.  For  the  validity  of  the  dissolution  of  the  marriage 
in  the  case,  whether  by  religious  profession  or  papal  dispen- 
sation, it  is  necessary  that  the  marriage  has  not  been  con- 
summated. 

1475.  Now  what  is  the  mode  of  procedure  in  dissolving 
a  marriage  which  is  ratnm,  but  not  yet  constimmatum  ?  In 
both  cases — namely,  whether  the  dissolution  takes  place  by 
religious  profession  or  pontifical  dispensation — the  non-con- 
summation must  be  fully  and  canonically  proven,  and  there- 
fore the  mere  assertion  or  confession,  even  though  confirmed 
by  oath,  of  the  married  couple,  is  of  itself  insufficient. 
Hence,  in  the  case  of  the  dissolution  of  the  marriage  by 
religious  profession,  the  married  couple  cannot  separate  of 
their  own  accord,  but  must  apply  to  the  ecclesiastical  court 
of  the  diocese  to  which  they  belong,  whose  right  and  duty 
it  is  to  examine  the  case,  by  a  trial  or  judicial  proceedings, 
and  pronounce  sentence.' 

1476.  Moreover,  in  the  case  of  the  dissolution  of  the  mar- 
riage by  papal  dispensation,  a  sufficient  cause  should  be 
alleged,  apart  from  the  non-consummation.  Hence,  in  the 
petition  for  such  a  dispensation,  two  things  must  be  clearly 
shown:    First,   that   the    marriage   was   not   consummated; 

'  C.  Trid.,  sess.  24,  can.  6,  de  Sacr.  matr. ;  cap.  Verum,  de  Convers.  conjug. ; 
Ben^d.  XIV.,  de  Syn.,  1.  13,  c.  12. 

*  Const.  Dei  Miseratione  cit.,  §  15.     ^  Kutschker,  1.  c,  vol.  i.,  pp.  283,  284. 


Matrimonial  Causes,  also  in  the  U.  S.  401 

secondly,  that  there  is  just  cause  for  the  granting  of  the  dis- 
pensation. Unless  both  these  things  be  proved,  the  dispensa- 
tion will  not  be  granted.  These  two  conditions,  however, 
are  required  only  for  the  licitness  of  the  dispensation.  For 
the  dispensation  would  be  valid,  though  illicit,  even  though 
the  non-consummation  of  the  marriage  were  not  proved, 
provided  it  really  were  a  fact.'  For  the  causes  which  are 
usually  considered  sufficient  for  such  a  dispensation,  see 
Cardinal  Kutschker.* 

1477.  The  married  couple  can  send  their  petition  to  Rome 
themselves,  though  it  is  much  better  to  do  so  through  the 
Ordinary.  The  petition,  which  should  be  addressed  to  the 
Pope  himself,  should  state  all  the  facts  and  circumstances  of 
the  case,  the  causes  upon  which  the  request  for  the  dispen- 
sation is  based,'  the  names  of  both  of  the  married  couple, 
their  residence,  the  parish  and  diocese  to  which  they  belong, 
the  priest  before  whom  their  marriage  was  contracted.* 
Here  it  is  necessary  to  observe  that  the  Pope  grants  such  a 
dispensation  only  when  the  petition  therefor  emanates  from 
at  least  one  of  the  spouses  themselves,  but  not  when  it  comes 
from  others.^ 

1478.  The  Holy  Father,  upon  receipt  of  the  petition  in 
the  case,  submits  it  to  one  of  the  sacred  congregations, — 
generally  to  the  Sacred  Congregation  of  Council,  whose 
duty  it  is,  not  indeed  to  grant  the  dispensation, — for  this  is 
reserved  exclusively  to  the  Pope, — but  to  examine  all  the 
facts  in  the  case,  and  advise  the  Holy  Father  whether,  in 
view  of  the  facts  ascertained,  the  dispensation  should  be 
granted  or  refused." 

1479.  -I^n  order  that  the  S.  C.  C,  when  such  a  case  is  re- 
ferred to  it   by  the    Pope,  may  be   able   to  give  the    Holy 

'  Bouix,  de  Jud.,  vol.  ii.,  p.  455.  '  L.  c,  vol.  i.,  p.  312  sq. 

^  Kutschker,  1.  c,  p.  317.  ''  Bened.  XIV.,  Const.  Dei  Miseratione,  §  15. 

*  S.  C.  C.  in  Agrigent.,  15  Martii,  1727;  cf.  Kutschker,  1.  c.,p.  316. 
«  Bened.  XIV.,  Const,  cit.,  §  15. 


402  Ecclesiastical  Civil  Trials  Pccicliar  to 

Father  its  advice  or  consultative  vote  on  the  petition  for  the 
dispensation,  it  usually  writes  to  the  Ordinary  of  the  parties 
for  his  opinion  and  for  further  information— /r^?  voto  et  infor- 
matione.  It  theft  becomes  the  bishop's  duty  to  institute  a 
canonical  summary  trial  for  the  purpose  of  juridically  ascer- 
taining the  non-consummation  of  the  marriage,  and  the  exist- 
ence of  legitimate  causes  for  the  dispensation.' 

1480.  Q.  Is  the  S.  C.  C,  and  the  bishop  to  whom  it  writes 
for  information,  bound,  in  verifying  the  non-consummation 
of  the  marriage  and  the  existence  of  legitimate  causes  for  the 
dispensation,  to  proceed  in  the  manner  prescribed  by  Pope 
Benedict  XIV.  in  his  constitution  Dei  Miseratione,  especially 
so  far  as  making  use  of  a  defender  of  marriage  is  concerned  ? 

A.  Cardinal  Kutschker^  seems  to  hold  the  affirmative,  so 
far  as  the  bishop  is  concerned,  and  therefore  by  implication 
also  in  relation  to  the  Sacred  Congregation  of  Council. 
Bouix  maintains  the  negative,  His  reasoning  is  substantially 
as  follows  :  The  formalities  prescribed  by  Benedict  XIV. 
are  binding  only  on  judges  who  are  to  pronounce  upo7i  the 
validity  or  invalidity  of  a  marriage.  Now,  in  the  case  under 
discussion,  no  such  sentence  is  or  can  be  pronounced,  as  the 
marriage  is  supposed  to  be,  and  always  to  have  been  per- 
fectly valid,  though  not  consummated.  Moreover,  the  dis- 
pensation in  a  marriage  which  is  ratiim  not  cojistiminatum  is 
reserved  exclusively  to  the  Pope,  and  cannot  be  granted  by 
the  Sacred  Congregation  of  Council,  much  less  by  any 
bishop.  Hence  the  Sacred  Congregation's  duty  consists 
simply  in  advising  t\iG  Pope  as  to  whether  the  dispensation  is 
to  be  granted  or  not.  So  also  the  bishop  to  whom  the  S.  C.  C. 
writes  for  information  cannot  proceed  to  declare  the  marriage 
null.  His  duty  is  simply  to  report  to  the  Sacred  Congregation 
whether  the  marriage  has  been  consummated  or  not,  and 
whether  there  are  legitimate  reasons  for  granting  the  dis- 
pensation.' 

*  Kutschker,  1.  c,  p.  317.       '  L.  c,  p.  317.       *  Bouix,  de  Judic,  vol.  ii  ,  p.  458. 


Matrimonial  Causes^  also  i7i  the  U.  S.  403 

148 1.  Whatever  may  be  said  on  this  head,  practically 
speaking  it  will  always  be  safer  for  the  bishop  to  make  use  of 
the  defender  of  the  marriage,  as  prescribed  by  Benedict  XIV. 
Thus  the  S.  C.  C.  is  accustomed  to  appoint  and  hear  this  de- 
fender in  the  causes  here  under  consideration.'  In  regard  to 
the  special  mode  of  procedure,  when  either  or  both  of  the  mar- 
ried couple  demand  the  annulment  of  the  marriage  because 
of  alleged  impotence,  see  the  Instruction  of  the  S.  C.  C, 
August  22,  1840,  above  quoted,  and  also  the  Instruction  of 
the  Supreme  Congregation  of  the  Holy  Office,  both  of  which 
documents  we  shall  give  in  the  Appendix. 

§  4.  Judicial  Proofs  in  Matrimonial  Causes  of  Nullity. 

1482.  Judicial  proofs  in  these  causes,  in  general. — Once  a 
marriage  has  been  contracted  in  due  form,  or  as  canonists 
say,  in  facie  ecclesiae, — that  is,  with  the  prescribed  formalities, 
— the  presumption  is  always  in  favor  of  its  validity.*  Hence, 
whoever  wishes  to  have  a  marriage,  once  it  has  been  con- 
tracted, annulled,  must  clearly  diud  fully  prove  its  nullity.  In 
other  words,  he  must  show,  by  proofs  which  are  canonically 
and  juridically  full  and  complete  {probatio  plena) — v.g.,  by  the 
testimony  of  two  unexceptionable  witnesses — that  the  mar- 
riage is  invalid — v.g.,  because  of  an  annulling  impediment 
existing  at  the  time  of  its  solemnization."  Hence  also,  when  a 
marriage  is  contested  as  invalid  before  the  ecclesiastical  court, 
by  either  of  the  married  couple  or  by  others,  a.nd  the  ecclesias- 
tical judge,  upon  due  trial  or  investigation,  finds  that  the  in- 
validity is  not  fully  and  completely  established,  but  that  a 
doubt  remains  as  to  whether  the  alleged  impediment  exists 
or  not,  he  must  pronounce  in  favor  of  the  validity  of  the 
contested  marriage.'' 

1483.  Consequently,  whenever  it  is  asserted  by  one  of  the 

'  Bouix,  de  Judic,  vol.  ii.,  p.  457. 

-  Cap.  5,  de  Eo  qui  cogn.  (iv.  13);  cap.  22,  de  Test.  (ii.  20). 

2  Arg.  cap.  I,  de  Consang.  (iv.  14).  ''  Reifif.,  1.  4,  t.  19,  n.  17,  21, 


404         Ecclesiastical  Civil  Trials  Peculiar  to 

married  couple  that  an  annulling  impediment  exists  by  which 
the  marriage  is  null  and  void,  it  is  incumbent  upon  this  party 
to  prove  fully  and  beyond  a  doubt  that  such  an  impediment 
really  does  exist.  Here  we  observe  with  Cardinal  Kutschker, 
that  where  there  is  question  of  a  double  marriage — namely, 
where  a  party  has  married  a  second  time,  while  the  spouse 
of  the  first  marriage  is  still  living — the  presumption  is  in 
favor  of  the  first  marriage,  not  of  the  second.  Consequently 
the  second  marriage,  even  though  contracted  in  facie  ccclcsiae, 
— i.e.,  in  due  form, — must  be  presumed  null  and  void  until 
the  first  marriage  is  clearly  proved  \xvs?X\6..^ 

1484.  From  what  has  just  been  said,  it  will  be  seen  that  it 
may  happen  that  a  married  person  may  be  perfectly  certain 
personally  of  the  nullity  of  his  or  her  marriage  {v.g.,  if  he 
knows  that  an  annulling  impediment  existed  at  the  time  the 
marriage  was  contracted),  and  yet  be  unable  to  prove  it 
juridically  or  canonically.  What  is  to  be  done?  It  is  certain 
that  such  a  person  cannot  ask  or  render  the  debitum  maritale  ; 
otherwise  he  would  be  acting  against  his  conscience.  He  is, 
moreover,  bound  to  separate  from  the  other  spouse,  unless 
he  can  live  with  her,  or  she  with  him,  as  brother  and  sister. 
It  is  true  that  in  foro  externa  the  ecclesiastical  judge  would 
have  to  compel  them  to  live  together  as  a  married  couple, 
there  being  no  juridical  proof  of  the  invalidity  of  the  mar- 
riage. But  the  person  in  the  case  would  be  obliged  to  dis- 
obey this  judicial  mandate.' 

1485.  Judicial  proofs  in  matrimonial  causes  of  nullity,  in 
particular. — Having  given  certain  general  principles  concern- 
ing the  proofs  in  question,  we  now  proceed  to  touch  upon 
each  kind  of  proofs  in  particular.  As  we  have  already  dis- 
cussed the  nature  and  force  of  the  various  kinds  of  judicial 
proofs,  as  admissible  in  criminal  and  civil  ecclesiastical  trials 
in  general,"  and  as  the  proofs  in  matrimonial  causes  or  trials 

'  Kutschker,  vol.  v.,  p.  832.  «  Reiff.,  I.  c,  n.  22,  23.         *  Supra,  n.  814  sq. 


Matrimonial  Causes,  also  in  the  U.  S.  405 

partake  in  general  of  the  same  nature,  and  are  governed  by 
the  same  principles,  we  shall  only  say  a  few  words  in  regard 
to  each  of  these  proofs. 

i486.  The  chief  kinds  of  proofs  in  matrimonial  causes  are 
the  confession  or  deposition  of  the  married  couple  itself; 
instruments  ;  the  testimony  of  witnesses  ;  the  inspection  and 
testimony  of  experts  ;  the  oath.  i.  TJie  confession  of  the  mar- 
riedcouple. — We  have  seen  above,  that  a  judicial  confession 
constitutes  full  proof,  nay,  the  strongest  of  proofs.'  This 
rule,  however,  does  not  hold  in  causes  of  nullity  of  marriages. 
In  these  causes  the  confession,  admission,  or  testimony  of 
either  of  the  married  couple,  or  even  of  both,  as  against  the 
validity  of  a  marriage  contracted  by  them,  has  of  itself  no 
force,  even  when  it  is  corroborated  by  rumor  among  the 
neighbors."^  This  is  expressly  enacted  by  Pope  Celestine  III., 
as  follows  :  "  Propter  eorum"  (conjugum)  "  confessionem 
tantum,  vel  rumorem  viciniae  separari  non  debent."  ' 

1487.  The  reason  of  the  inadmissibility  of  the  confession 
of  the  married  couple  lies  in  the  evident  danger  of  collusion 
on  their  part.  For  it  is  plain  that  if  married  people  who  are 
tired  of  their  marriage,  and  anxious  to  break  it,  knew  that 
the  ecclesiastical  judge  would  dissolve  their  marriage  on  the 
strength  of  their  confession  alone,  they  would  readily  agree 
with  each  other  that  one  of  them  should  affirm  the  existence 
of  an  annulling  impediment  (though  it  does  not  really  exist), 
and  that  the  other  should  corroborate  this  false  statement 
either  expressly  or  at  least  tacitly — v.g.,  by  not  saying  any- 
thing at  all,  or  by  not  appearing  in  court,  when  cited,  to  de- 
fend the  marriage.*  This  reason  is  thus  set  forth  by  Pope 
Celestine  III. :  "  Cum  quandoque  nonnulli  inter  se  contra  ma- 
trimonium  velint  colludcre,  et  ad  confessionem  incestus"  (or 


'  Supra,  n.  823.  ^  Rgiff.,  1.  4,  t.  19,  n.  16;  Permaneder,  1.  c,  §  331. 

^  Cap.  Super  eo5,  de  eoqui  cogn.  (iv.  13). 
*  Kutschker,  1.  c,  vol.  v.,  p.  845. 


4o6         Ecclesiastical  Civil  Trials  Peculiar  to 

of  some  other  impediment)  "  facile  prosilirent,  si  suo  judicio 
crederent,  per  judicium  ecclesiae  concurrendum,"  ' 

1488.  It  is  partly  also  owing  to  the  fear  or  danger  of  col- 
lusion in  the  married  couple  that  the  malicious  and  wilful 
disobedience  to  the  citation  for  trial,  on  the  part  of  either 
of  the  married  couple,  is  not  at  all  to  be  taken  as  proof 
against  the  validity  of  the  marriage.  This  contumacy,  as 
we  have  shown  in  the  case  of  criminal  and  grave  civil  causes, 
has  simply  this  effect,  that  the  cause  or  trial  may  now  go  on 
in  the  absence  of  the  contumacious  party  as  though  he  were 
present ;  and  sentence  may  be  pronounced  against  the  absent 
party,  though  only  if  the  testimony  as  brought  out  during 
the  trial  is  clear  and  complete."  Observe  that  in  these 
causes  the  defender  of  the  marriage  is  always  the  ex  officio 
co-defendant,  and  it  is  his  duty  to  supply  the  place  of  the  party 
contumaciously  absent. 

1489.  Of  course,  where  either  of  the  married  couple  is 
absent  indeed  from  the  trial,  but  not  wilfully  or  maliciously, 
the  trial  cannot  go  on,  and  the  cause  must  be  left  in  statu  quo 
until  he  or  she  either  appears,  or  undoubted  proof  of  his  or 
her  death  is  obtained." 

1490.  We  said  above,*  that  the  confession  of  the  married 
couple  had  of  itself  no  force  as  against  the  marriage.  Ob- 
serve the  words  of  itself.  For,  taken  in  conjunction  with 
other  proofs,  this  confession  or  statement  of  the  married 
couple  may  be  of  considerable  importance,  and  enable  the 
judge  to  arrive  at  a  better  knowledge  of  the  facts  in  the  case. 
Hence  also,  as  we  have  seen,  both  the  husband  and  wife 
whose  marriage  is  being  called  in  question  should  be  exam- 
ined, and  that  before  any  one  else,  at  the  trial.  It  is  for  the 
judge  to  weigh  their  evidence  or  statement,  and  to  decide 
whether  it  is  based  on  truth  or  collusion  and  fraud.^ 

'  Cap.  5  cit. ;  Glossa,  ib.  v.  Confessionem. 

*  Cap.  5,  §  Porro  specialis,  ut  lite  non  cont.  (ii.  6);  cap.  10,  de  Sent.  (ii.  27); 
S.  C.  C,  in  Cajet.,  2  Oct.,  1728,  et  in  Milev.,  1821;  Kutschker,  1.  c,  p.  775. 
»  Cap.  5  (ii.  6).  *  Supra,  n.  i486.  *  Mansella,  1.  c,  p.  187. 


Matrimonial  Causes ,  also  in  the  U.  S.  407 

1491.  2.  Instruments  as  proofs  in  tnatrimonial  causes. — The 
principles  laid  down  by  us  above/  concerning  the  various 
kinds  and  the  force  of  instruments,  apply  here  also.  We  merely 
observe  that  matrimonial  registers  are  considered  public  in- 
struments in  matrimonial  causes,  and  consequently  constitute 
of  themselves  full  proof.  Nay,  a  single  document  of  this  or  a 
similar  kind  has  of  itself  greater  force  than  the  testimony  of 
two  unexceptionable  witnesses.  "Hence  the  following  axiom 
of  law  :  "  Contra  authenticum  litterale  instrumentum,  hu- 
manum  non  admittitur  testimonium."  "  The  meaning  of  this 
axiom  is  not  that  such  instruments  can  never  be  overthrown 
by  proper  evidence,  but  simply  that  they  can  be  shown  to  be 
false  only  by  clear  and  manifest  proof s  to  that  effect.' 

1492.  3.  Witnesses  as  proofs  in  matrimonial  causes. — The 
third  kind  of  proofs  in  matrimonial  causes  is  the  deposition 
of  witnesses.  Of  this  kind  of  proofs  we  have  already  spoken 
at  sufficient  length.''  Here  we  shall  subjoin  but  a  few  words, 
specially  applicable  to  the  causes  under  consideration.  As 
in  other  causes,  so  in  matrimonial  causes  of  nullity,  two  wit- 
nesses who  are  above  all  suspicion  are,  as  a  rule,  required 
and  sufficient  to  prove  the  invalidity  of  a  marriage.  We 
say,  as  a  rule  ;  for  when  there  is  question  of  establishing  the 
impediment  of  sexual  impotency  forthe  purpose  of  annulling 
a  marriage  already  contracted,  and  the  inspection  or  exami- 
nation of  the  sexual  organs  of  the  married  couple  by  experts 
— i.e.,  physicians  for  the  husband,  and  midwives  for  the  wife 
— does  not  give  a  certainty  but  a  mere  probability  of  the 
existence  of  impotency,*  then  it  becomes  necessary  for  the 
spouses  to  swear  that  they  cannot  consummate  the  copula, 
and  for  seven  {septima  mantis^  relatives  or  neighbors,  or  in 
their  default  seven  other  reliable  persons,  to  swear  that  the}' 

'  Supra,  n.  864  sq.  *  Mansella,  I.  c,  p.  188. 

'  Cf.  cap.  10,  de  Fide  instr.  (ii.  22).  *  Supra,  n.  825  sq. 

*  Phillips,  Comp.  §  263. 


4o8         Ecclesiastical  Civil  Trials  Peculiar  to 

believe  what  the  spouses  affirm  under  oath  to  be  true.'  By 
custom,  however,  where  seven  such  persons  cannot  be  had 
a  less  number  is  sufficient. 

1493.  The  questions  to  be  put  to  the  witnesses  in  matri- 
monial causes  are,  as  in  other  causes,  general  and  particular. 
The  general  questions  are  the  same  for  nearly  all  matrimo- 
nial causes.  They  are  chiefly  these :  What  is  your  name, 
age,  religion,  condition  or  station  in  life,  residence  ?  Do  you 
know  the  married  couple,  their  parents,  relatives,  etc.  ?  Are 
you  a  relative  of  theirs  ?  In  what  degree,  etc.,  etc.  ?  Please 
state  the  facts  in  the  case  as  you  know  them  ?  It  is  well  to 
allow  the  witness  to  tell  what  he  knows  in  his  own  way. 

1494.  Next,  the  particular  questions  are  to  be  asked. 
They  are  to  be  taken  from  and  based  on  the  statement  or 
testimony  of  the  married  couple,  and  all  other  facts  and 
arguments  submitted  to  the  court.  They  are  framed  by  the 
defender  of  the  marriage.*  Of  course,  these  particular  ques- 
tions vary  considerably  according  to  the  various  kinds  of 
annulling  impediments  which  are  alleged  against  the  validity 
of  the  marriage.  Specimens  of  such  questions  are  given  by 
Mansella,"  to  whom  we  refer  the  reader. 

1495.  4.  Corporal  inspection  by  experts  is  the  next  kind  of 
proofs  in  matrimonial  causes.  This  means  is  employed 
under  certain  conditions,  as  we  have  already  intimated,*  in 
those  cases  where  the  marriage  is  impugned  because  of 
alleged  impotency  or  the  physical  inability  to  consummate  the 
copula,  or  in  order  to  prove  that  a  tnatrimoniutn  ratum  was  not 
consummated.^  Concerning  this  corporal  inspection  by  ex- 
perts, see  the  Instruction  of  the  S.  C.  C.  of  August  22,  1840, 
and  the  Instruction  of  the  Congregation  S.  O.,  both  of  which 
documents  lay  down  the  mode  in  which  it  is  to  take  place. 

1496.  5.   Tlie  oath  as  a  proof  in  matrimo?iial  causes. — As  we 

'  Instr.  S.  C.  C,  22  Aug.,  1840;  Inslr.  S.  C.  Off.  de  imped,  impot. 

*  Mansella,  1.  c,  p.  198.  ^  lb.,  p.  199. 

*  Supra,  n.  1492.  *  Mansella,  1.  c,  p.  203. 


Matrimonial  Catises,  also  in  the  U.  S.  409 

have  seen,  not  only  the  spouses  themselves,  but  also  all  the 
witnesses,  must  depose  under  oath.  Otherwise  their  testi- 
mony is  of  no  force  whatever.  Hence  it  will  be  seen  that 
the  oath  adds  great  weight  to  the  testimony,  and  is  therefore 
a  necessary  part  of  the  proofs  in  matrimonial  as  in  other 
causes.' 

§  5.    What  Persons  are  qualified  by  the  Law  of  the  Church  to 
act  as  (a)  Plaintiffs  and  {b)  Witnesses  in  Matrimonial  Causes. 

I4g7.  Q.  What  persons  can  and  should  be  admitted  to 
object  to  or  contest  a  marriage  {accusare  matrimonium)  ?  In 
other  words,  what  persons  can  be  plaintiffs  against  a  mar- 
riage ? 

A.  We  premise:  We  are  speaking  here  not  of  marriages 
about  to  be  contracted.  For  all  persqns  whatever  who  know 
of  an  impediment  existing  between  persons  about  to  be  mar- 
ried can,  nay,  even  if  they  are  unable  to  prove  its  existence, 
are  bound,  if  they  can  do  so  conveniently,  to  make  it  known, 
so  as  to  prevent  the  marriage  from  taking  place." 

1491.  We  speak,  therefore,  only  of  marriages  already  con- 
tracted, both  so  far  as  the  separation  from  bed  and  board  and 
the  dissolution  of  the  vinculum  itself  are  concerned.  Now  in 
these  cases  not  all  persons  are  promiscuously  admitted  as 
plaintiffs.  What  persons,  therefore,  are  admitted  by  the  law 
of  the  Church,  as  in  force  also  in  the  United  States,  to 
demand  the  separation  a  mensa  et  toro,  or  the  annulment  of 
the  marriage?  First,  when  there  is  question  of  separation 
a  mensa  et  toro,  only  the  innocent  spouse  can  act  as  plaintiff 
— that  is,  demand  the  separation.  The  reason  is,  that  the 
right  of  complaint  or  asking  for  such  divorce  is  granted  in 
favor  of  the  innocent  party,  who  has  a  perfect  right  to  con- 
done the  injury  and  thus  relinquish  the  right  of  preferring 
the  complaint.^ 

^  Mansella,  1.  c,  p.  205.         '  S.  Alph.  1.  vi.,  n.  995;  Konings,  n.  1541,  q.  3. 
'  Ex  cap.  5,  de  Procur.  (i.  38);  cap.  4,  de  Adult,  et  stupr.  (v.  16). 


4IO         Ecclesiastical  Civil  Trials  Peculiar  to 

1499.  This,  however,  is  to  be  understood  only  of  a  civil 
action  for  such  divorce — that  is,  only  of  an  action  instituted 
before  the  ecclesiastical  judge  solely  for  the  purpose  of 
obtaining  the  separation.  Therefore  it  does  not  extend  to  a 
criminal  action.  Hence  when  there  is  question,  not  simply 
of  obtaining  a  divorce,  but  rather  oi  punishing  the  adulterous 
spouse,  any  person  whatever  can  make  the  complaint — that 
is,  act  as  accuser  or  plaintiff,  provided  he  be  a  male  and 
twenty-five  years  old.' 

1500.  Secondly,  when  there  is  question  of  dissolving  the 
vinculum  of  a  marriage  already  contracted,  it  is  necessary  to 
distinguish  between  three  kinds  of  annulling  impediments, 
on  account  of  which  the  demand  for  the  annulment  of  the 
marriage  is  made.  The  first  kind  comprises  those  which  arise 
from  a  defective  consent — namely,  the  impediments  of  fear 
and  error.  The  second  kind  are  the  impediments  of  public 
propriety  {publica  honcstas)  and  of  consanguinity  and  affinity 
ex  copula  conjugali.  The  third  includes  all  the  other  impedi- 
ments— v.g.,  the  impediment  of  ligamen. 

1 501.  Now  the  dissolution  or  annulment  of  a  marriage 
contracted  with  an  impediment  of  the  first  class  can  be 
demanded  only  by  the  married  couple  itself.  The  reason  is, 
that  if  the  couple  is  willing,  either  expressly  or  tacitly,  to 
ratify  or  renew  their  consent  given  under  grave  fear  or  sub- 
stantial error,  and  thus  make  the  marriage  valid,  they  can  do 
so,  and  no  one  else  has  a  right  to  interfere  or  complain.* 
Nay,  the  law  of  the  Church  presumes  that  the  married 
couple  in  the  case  does  actually  ratify  the  marriage,  if  after 
becoming  aware  of  the  impediment  they  nevertheless  know 
each  other  carnally.*  Hence  if  in  the  latter  case  the  married 
couple  nevertheless  wished  to  have  their  marriage  annulled, 
they  could  not  be  heard. 

1502.  The  impediment  of  impotency  is  placed  on  the  same 

'  Schmalzg.,  1.  c,  n.  13.  *  Schmalzg.,  1.  c,  n.  15. 

^  Cap.  4,  Qui  matr.  ace.  (iv,  18). 


Matrtmom'al  Causes,  also  in  the  U.  S.         411 

footing  with  those  just  described,  so  far  as  the  right  to  act 
as  plaintiff  or  accuser  against  the  marriage  is  concerned/ 
For  the  married  couple  can,  if  they  choose,  live  together  as 
brother  and  sister,  notwithstanding  the  impedimentiun  impo- 
tent iae.^ 

1503.  In  the  second  case, — that  is,  in  the  case  of  the  im- 
pediments of  public  propriety  and  of  consanguinity  and 
affinity, — those  persons  are  admitted  as  plaintiffs  who  usually 
are  best  acquainted  with  the  facts.  Such  are  evidently, 
besides  the  married  couple  itself,  their  parents,  next  their 
brothers  and  sisters  and  other  relatives  ;  then  neighbors ; 
finally,  in  default  of  the  foregoing,  all  others  who  may  have 
a  knowledge  of  the  facts." 

1504.  In  the  third  case,  not  only  the  married  couple 
itself,  but  all  persons,  as  a  rule,  who  are  cognizant  of  an 
impediment,  are  allowed  to  contest  the  marriage  and  demand 
its  annulment,  especially  when  their  interest  is  concerned  in 
the  matter,  provided,  of  course,  they  are  of  a  good  character 
and  worthy  of  belief.^  We  observe  that  in  the  case  of  impedi- 
ments of  the  second  and  third  class  the  ecclesiastical  judge 
may  and  sometimes  should  himself  proceed  ex  officio  against 
the  marriage  if  the  other  parties  fail  to  do  so. 

1505.  What  persons,  in  particular,  are  chiefly  excluded 
from  acting  as  plaintiffs  against  a  marriage  ?  All  those  who 
are  not  above  suspicion,  and  therefore  not  worthy  of  belief. 
Hence  the  following  persons  are  chiefly  excluded  as  plain- 
tiffs: {a)  Those  who  accept  money  for  acting  as  plaintiffs,  or 
exact  money  for  desisting  from  acting  as  such.'  {b)  Those 
who  neglected  to  reveal  the  impediment  at  the  time  the  pub- 
lication of  the  banns  took  place,  prior  to  the  marriage,  unless 
they  prove  under  oath  that  owing -to  absence,  sickness,  and 
the  like  they  were  ignorant  of  the  publication  of  the  banns, 

1  Mansella,  p.  179.  "^  Cap.  4,  5,  de  Frig,  et  malef. 

3  Cap.  3,  Qui  matr.  ace.  (iv.  18);  Mansella,  1.  c,  p.  180. 

*  Mansella,  1.  c,  p.  180.  ^  Cap.  5  ,  Qui  matr.  ace. 


4 1 2         Ecclcsiastcial  Civil  Trials  Pcailiar  to 

or  that  they  did  not  become  aware  of  the  impediment  any 
sooner.'  {c)  As  a  rule,  those  who  impugn  the  marriage 
merely  by  letter,  without  being  present  personally.^  The 
object  of  this  law  is  to  prevent  calumnious  denunciations, 
which  would  occur  frequently  if  the  complaint  or  accusation 
could  be  made  by  an  absent  person.  Hence  a  person  who 
demands  the  annulment  of  a  marriage  must,  as  a  rule,  present 
this  demand  in  person  to  the  judge,  and  that  in  writing-/ 

1506.  Q.  What  persons  are  admissible  as  zvitncsses  in 
matrimonial  causes  of  nullity?  In  other  words,  who  can 
testify  for  or  against  the  validity  of  a  marriage  ? 

A.  All  those  who  have  a  knowledge  of  the  impediment 
objected  by  the  plaintiff,  and  are  otherwise  worthy  of  belief.* 
Hence  even  parents,  brothers  and  sisters,  and  other  relatives 
of  both  sexes,  are  competent  witnesses  in  these  causes,  at 
least  where  there  is  question  of  dissolving  the  marriage  on 
account  of  an  impediment  of  consanguinity  or  affinity, 
or  public  propriety.^  The  reason  is,  that  they  are  not  only 
better  acquainted  with  the  degree  of  relationship  existing 
between  the  married  couple,  but  are  believed,  moreover,  to 
be  opposed  to  incestuous  marriages,  as  bringing  disgrace 
upon  their  family."  From  what  has  been  said,  it  will  be 
seen  that  while  parents  and  relatives  are  not  usually  admis- 
sible as  witnesses  in  other  civil  causes,  nor  in  criminal  causes,' 
they  are  competent  witnesses  in  the  causes  under  considera- 
tion. 

1507.  In  certain  circumstances,  however,  the  testimony 
of  parents  and  relatives  may  become  suspected,  and  conse- 
quently inadmissible — v.g.,  where  they  testify  in  favor  of  sus- 
taining the  validity  of  a  marriage  contracted  by  a  poor 
female  relative  with  a  rich,  noble,  and  powerful  man.     For 

'  Schmalzg.,  1.  c,  n.  19.  '  Can.  5,  C.  2,  Q.  S;  cap.  2  (iv.  18). 

3  Card.  Kutschker,  vol.  v.,  pp.  522-525. 

*  Arg.  cap.  47,  de  Test,  et  attest,  (ii.  20).        '  Cap.  3,  Qui  matr.  ace.  (iv.  18). 
«  Schmalzg.,  1.  c,  n.  22.  Supra,  n.  827,  828. 


Matrimonial  Catcscs,  also  in  the  U.  S.         413 

the  presumption  in  this  and  similar  cases  is,  that  the  ad- 
vantages of  such  a  marriage  are  so  great  as  to  warp  their 
judgment  and  render  them  incapable  of  giving  impartial 
testimony.' 

1508.  Who  are  inadmissible  as  witnesses  in  matrimonial 
causes?  Chiefly  these  persons :  i.  Those  who  are  induced 
by  money  to  testify  or  not  to  testify."  2.  Those  who  testify 
only  by  letter,  without  being  personally  present  in  court. 
For  a  witness  must  be  personally  present  in  court,  and  give 
his  testimony  in  person.'  3.  Those  who  impugn  the  mar- 
riage— that  is,  those  who  are  the  plaintiffs  in  the  case ;  on 
the  general  principle  that  a  person  cannot  at  the  same  time 
be  plaintiff  and  also  witness.  This  rule,  however,  admits  of 
exceptions."  Thus  plaintiffs  can  be  also  witnesses  when  the 
judge  proceeds  ex  officio.'' 

1 509.  Remedies  against  a  sentence  pronounced  by  an  ecclesiasti- 
cal judge  in  matrimonial  causes. — As  we  have  seen  above,  after 
the  case  has  been  tried  and  the  parties  rest  their  case,  the 
ecclesiastical  judge  proceeds  to  pronounce  sentence,  and  that 
in  writing,  stating  distinctly  and  clearly  the  reasons  upon 
which  it  is  based,  and  declaring  the  marriage  either  valid  or 
not  valid. °  As  we  have  seen  above,  the  sentence  in  matri- 
monial causes  of  nullit)^  never  passes  into  res  judicata,  and 
consequently  a  new  trial  can  be  demanded  at  any  time,' 
where  sufficient  reasons  warrant  it — v.g.,  when  new  evidence 
of  a  orrave  character  is  discovered.* 

1 5 10.  The  remedies  against  a  sentence  in  matrimonial 
causes  are  the  same  with  those  in  other  causes — namely, 
complaint  of  nullity  of  the  sentence,  appeals,  and  reinstate- 

'  Schmalzg.,  1.  c,  n.  23.  ^  Cap.  5,  Qui  tnatr.  ace.  (iv.  18). 

^  Cap.  2,  eod. ;  L.  Testium  3,  §  3  idem  ff.,  de  Test.  et.  attest. 

*  Schmalzg.,  1.  c,  n.  25;  Mansella,  1.  c,  p.  180. 

*  Arg.  cap.  4,  de  Test.  (ii.  20);  cap.  27,  de  Sponsal.  et  matr.  (iv.  i). 

*  Mansella,  1.  c,  p.  211.  '  '  Cap.  7,  de  Sent.  (ii.  27). 

*  Phillips,  Lehrb.,  §  280,  p.  703. 


414  Ecclesiastical  Civil  Trials. 

ment.  The  application;  however,  of  these  remedies  in  mat- 
rimonial causes  has  certain  peculiarities.  Thus  the  com- 
plaint of  nullity  {querela  nullitatis)  may  be  lodged  against 
the  sentence  when  either  some  essential  formality  of  the 
trial  is  omitted,  or  the  defender  of  the  marriage  has  not  been 
called  to  the  proceedings. 

151 1.  In  regard  to  appeals  in  the  causes  under  considera- 
tion, we  observe,  that  when  the  judgment  of  the  court  in  the 
first  instance  is  in  favor  of  the  validity  of  the  marriage,  the 
plaintiff,  or  the  one  who  has  demanded  its  annulment  {accu- 
sator  ittatrimonii),  has  the  right  to  appeal.  If  he  appeals,  and 
the  validity  of  the  marriage  is  again  sustained  in  the  second 
instance,  or  if  not  in  the  second  at  least  in  the  third  instance, 
t'he  plaintiff  or  accuser  has  no  further  appeal.  Where,  on 
the  other  hand,  the  marriage  is  declared  null  and  void  by 
the  ecclesiastical  judge  of  the  first  instance,  the  defender  of 
the  marriage  not  only  can  but  is  bound  to  appeal ;  and  if, 
thereupon,  the  marriage  is  again  declared  invalid  also  by  the 
judge  in  the  second  instance,'  he  can  indeed,  if  in  conscience 
he  thinks  proper,  appeal  again,  but  he  is  not  obliged  to  do  so.' 
We  conclude  this  second  volume  in  the  words  of  the  Glossa 
in  Clem.,  cap.  2,  hb.  5,  tit.  11,  v.  Irritandus:  "  Natura  vero 
naturans,  cum  ad  illam  redibimus,  per  intercessionem  Vir- 
ginis  gloriosae,  nos  collocet  cum  electis." 

'  Bened.  XIV.,  Const.  Dei  Miseratione,  §§  8,  9.        *  Phillips,  1.  c,  p.  704. 


FINIS. 


APPENDIX. 


INSTRUCTIO 

S.   CONGREGATIONIS   DE   PROPA- 
GANDA FIDE 

DE  MODO  SERVANDO  AB  EPISCOPIS  FOE- 
DERATORUM  SEPTENTRIONALIS  AMER- 
ICAE  STATUUM  IN  COGNOSCENDIS  ET 
DEFINIENDIS  CAUSIS  CRIMINALIBUS 
ET   DISCIPLINARIBUS   CLERICORUM. 


1512.  Quamvis  Concilium  plenarium 
Baltimorense  II.,  ab  Apostolica  Sede 
recognitum,  certam  quamdam  iudicii 
formam  iam  antea  a  concilio  provin- 
ciali  S.  Ludovici  sancitam,  in  criminal- 
ibus  clericorum  causis  ab  ecclesiasticis 
curiis  dioecesium  Foederatorum  Sep- 
tentrionalis  Americae  Statuum  pertrac- 
tandis  servandam  esse  decreverit, 
experientia  tamen  compertum  est, 
statutum  iudicii  ordinem  baud  unde- 
quaque  parem  esse  ad  querelas  eorum 
praecavendas  quos  poena  aliqua  mulc- 
tari  contigerit.  Saepe  enim  postrerais 
hisce  temporibus  accidit  ut  presbyteri 
iudiciis  ea  ratione  initis  latisque  sen- 
tentiis  damnati,  remoti  praesertim  ab 
officio  rectoris  missionarii,  hue  illuc 
de  suis  Praelatis  conquesti  fuerint  et 
frequenter  etiam  ad  Apostolicam  Se- 
dem  recursus  detulerint.  Dolendum 
autem  est,  non  raro  evenire,  ut  in 
transmissis  actis  plura,  eaque  necessa- 
ria,  desiderentur  atque  perpensis  omni- 
bus, gravia  saepe  dubia  oriantur  circa 
fidem  documentis  hisce  in  causis  allatis 
habendam  vel  denegandam. 


INSTRUCTION 

OF     THE    SACRED    CONGREGATION 
DE  PROPAGANDA   FIDE 

ON  THE  MODE  OF  PROCEDURE  TO  BE 
OBSERVED  BY  THE  BISHOPS  OF  THE 
UNITED  STATES  OF  NORTH  AMERICA 
IN  TAKING  COGNIZANCE  OF  AND  DE- 
CIDING CRIMINAL  AND  DISCIPLINARY 
CAUSES   OF   ECCLESIASTICS. 

1512.  Although  the  Second  Plenary 
Council  of  Baltimore,  revised  by  the 
Holy  See,  enacted  that  a  certain  kind 
of  judicial  form,  already  sanctioned  by 
the  Provincial  Council  of  St.  Louis, 
should  be  observed  by  the  ecclesiasti- 
cal courts  of  the  dioceses  of  the  United 
States  of  North  America  in  criminal 
causes  of  ecclesiastics,  nevertheless 
experience  has  shown  that  the  pre- 
scribed form  of  trial  is  not  quite  suffi- 
cient to  prevent  complaints  on  the  part 
of  those  who  happen  to  be  visited  with 
punishment.  For  of  late  it  has  often 
•happened  that  priests  condemned  by 
judicial  trial  and  sentence  of  this  kind, 
especially  when  removed  from  the 
office  of  missionary  rector,  have  com- 
plained in  various  quarters  of  their 
prelates,  and  have  also  frequently  had 
recourse  to  the  Apostolic  See.  Now 
it  is  to  be  regretted  that  not  seldom  it 
happens  that  in  the  papers  or  docu- 
ments transmitted  to  us  many  and,  it 
must  be  added,  necessary  items  are 
wanting,  so  that,  upon  examination  of 
the  whole,  serious  doubts  frequently 
arise  as  to  the  credit  to  be  accorded  or 
refused  to  the  documents  brought  for- 
ward in  these  causes. 


4i6 


Appendix. 


1513.  Quae  omnia  S.  Congregatio 
fidei  propagandae  praeposita  serio 
perpendens,  a'innod  rcmedinm  hisce 
incommodis  parandum  ac  ita  iustitiae 
consulendum  esse  censuit  ut  neque 
insontes  clerici  per  iniuriam  poena 
afficiantur  neque  alicuius  criminis  rei 
ob  minus  rectam  iudiciorum  formam 
a  promerita  poena  immunes  evadant. 
Quod  quidem  facili  pacto  obtineret,  si 
cmnes  praescriptiones  a  sacris  canoni- 
bussapienter  editas  pro  ecclesiaslicis 
iudiciis  praesertim  criminalibus,  in- 
eundis  et  absolvendis  servandas  om- 
nino  esse  praeciperet.  Verum  animo 
reputans,  in  praedictis  Foederatorum 
Ordinum  regionibus  id  facile  servari 
non  posse,  ea  ratione  providendum 
esse  duxit  ut  saltern  illae  de  admisso 
crimine  accurate  peragantur  investiga- 
tiones  quae  omnino  necessariae  existi- 
mantur,  antequam  ad  poenam  irrogan- 
dam  deveniatur. 


1514.  Itaque  SSmo  Domino  Nostro 
Divina  Providentia  PP.  Leone  XIII. 
approbante,  in  generalibus  comitiis 
habitis  die  25  lunii  1878  S.  C.  decrevit, 
ac  districte  mandavit,  ut  singuli  mem- 
oratae  regionis  sacrorum  Antistites 
in  Dioecesana  Synodo  quamprimum 
convocanda  quinque,  aut  ubi  ob  pecu- 
liaria  rerum  adiuncta  tot  haberi  ne- 
queant  tres  saltern  presbyteros  ex 
probatissimis  et  quantum  fieri  poterit 
in  iure  canonico  peritis  seligant,  quibus 
consilium  quoddam  iudiciale,  seu,  ut 
appellant,  Commissio  investigationis 
constituatur,  eidemque  unum  ex  electis 
praeficiant.  Quod  si  ob  aliquam 
gravem  causam  Synodus  dioecesana 
statim  haberi  nequeat,  quinque  vel 
tres  prouti  supra  per  Episcopum  in- 
terim ecclesiastici  viri  ad  munus  de 
quo  agitur  deputentur. 


1513.  The  Sacred  Congregation 
charged  with  the  Propagation  of  the 
Faith,  having  seriously  weighed  all 
this,  has  resolved  that  some  remedy 
must  be  provided  for  these  troubles, 
and  the  ends  of  justice  attained  in  such 
a  manner  that  innocent  clergymen 
may  not  be  punished  nor  the  guilty 
escape  with  impunity,  through  any 
defective  form  of  trial.  All  this  could 
be  easily  effected  if  the  Sacred  Con- 
gregation were   to  command    that  all 

jhe  provisions  wisely  established  by 
the  sacred  canons  for  conducting  (from 
beginning  to  end)  ecclesiastical  trials, 
especially  in  criminal  causes,  should 
be  unfailingly  observed.  But  the  Sa- 
cred Congregation,  taking  into  consid- 
eration that  in  the  aforesaid  country 
this  cannot  be  easily  carried  out,  has 
determined  to  make  provision  that 
there  shall  be  at  least  such  careful  in- 
quiry into  the  party's  alleged  guilt  as 
is  absolutely  necessary  before  punish- 
ment may  be  inflicted. 

1 5 14.  Wherefore,  with  the  approval 
of  our  Most  Holy  Father,  by  Divine 
providence,  Pope  Leo  XIII.,  in  a 
general  meeting  held  on  the  25th  day 
of  June,  1878,  the  Sacred  Congregation 
has  decreed  and  strictly  commanded 
that  each  bishop  of  the  above  country, 
in  diocesan  synod,  to  be  convoked  as 
soon  as  possible,  shall  select  five,  or, 
where  by  reason  of  peculiar  circum- 
stances so  many  cannot  be  had,  at 
least  three  of  the  most  worthy  priests, 
and  as  much  as  possible  those  skilled 
in  canon  law,  who  will  constitute  a 
sort  of  judicial  council,  or,  as  they  say, 
a  Commission  of  Investigation,  over 
which  he  shall  appoint  one  of  their 
number  to  preside.  But  if  for  any 
grave  reason  a  diocesan  synod  cannot 
be  held  immediately,  five  or  three  ec- 
clesiastics, as  stated  above,  shall  be 
named  meanwhile  by  the  bishop  to  the 
office  in  question. 


Appendix. 


417 


1515.  Commissionis  ita  constitutae 
princeps  erit  officium  criminales  atque 
disciplinares  presbyterorum  aliorum- 
que  clericorum  causas  iuxta  normam 
mox  proponendam  ad  examen  revo- 
care,  rite  cognoscere  ac  ita  Episcopo 
in  ipsis  definiendis  auxilium  praebere. 
Satagant  propterea  oportet  ad  hoc 
munus  electi,  ut  accuratae  fiant  inves- 
tigationes,  ea  proferantur  testimonia 
atque  a  praesumpto  reo  omnia  exqui- 
rantur  quae  ad  veritalem  eruendam 
necessaria  censentur  ac  ad  iustam  sen- 
tentiam  tuto  prudenterque  ferendanf 
certa  vel  satis  firma  argumenta  sup- 
peditent. 

1516.  Quod  si  de  alicuius  Rectoris 
missionis  remotione  agatur,  nequeat 
ipse  a  credito  sibi  munere  deiici  nisi 
tribus  saltern  praedictae  commissionis 
membris  per  Episcopum  ad  causam 
cognoscendam  adhibitis,  eorumque 
consilio  audito. 


1 517.  Electi  Consiliarii  in  suscepto 
munere  permanebunt  ad  proximam 
usque  Dioecesanae  Synodi  celebra- 
tionem,  in  qua  vel  ipsi  confirmentur 
in  officio  vel  alii  designentur.  Quod 
si  interim  morte,  aut  renuntiatione  vel 
alia  causa  praescriptus  Consiliariorum 
numerus  minuatur,  Episcopus  extra 
Synodum  alios  in  deficientium  locum 
prout  superius  statutum  est,  sufficiat. 

1518.  In  causis  cognoscendis,  iis 
praesertim  in  quibus  de  rectore  mis- 
sionario  definitive  a  suo  officio  amo- 
vendo  agatur,  iudicialis  commissio 
hanc  sequetur  agendi  rationem. 


15 15.  Of  the  Commission  so  consti- 
tuted, the  principal  duty  shall  be  to 
inquire  into,  and  take  due  cognizance 
of,  criminal  and  disciplinary  causes  of 
priests  and  other  ecclesiastics,  accord- 
ing to  the  mode  of  procedure  given 
below,  and  thus  to  assist  the  bishop 
in  deciding  the  same.  Hence  those 
chosen  for  this  office  must  take  good 
care  to  make  diligent  inquiry,  to  bring 
out  the  testimony,  to  interrogate  the 
defendant  on  all  points  that  may  be 
deemed  necessary  to  elicit  the  truth, 
so  as  to  furnish  certain  or  sufficiently 
strong  grounds  for  safely  and  prudently 
pronouncing  a  just  sentence. 

1516.  Whenever  there  is  question  of 
the  removal  of  a  rector  of  a  mission, 
the  same  cannot  be  ejected  from  the 
office  committed  to  him  unless  the 
bishop  shall  have  previously  engaged 
three  members  at  least  of  the  above- 
mentioned  Commission  to  take  cog- 
nizance of  the  cause  and  shall  have 
listened  to  their  advice. 

1517.  The  councillors  chosen  shall 
remain  in  office  until  the  celebration 
of  the  next  diocesan  synod,  in  which 
they  will  either  be  confirmed  in  office 
or  others  appointed  in  their  stead. 
But  if,  in  the  meanwhile,  the  pre- 
scribed number  of  councillors  be  les- 
sened by  death,  resignation,  or  other 
cause,  the  bishop  shall  extra-synodi- 
cally  fill  the  vacancies,  as  above  pro- 
vided. 

1 5 18.  In  taking  cognizance  of 
causes,  those  especially  where  there  is 
question  of  the  absolute  removal  of  a 
missionary  rector  from  his  office,  the 
judicial  Commission  shall  observe  the 
following  form  of  procedure:' 


>  This  mode  of  procedure  is  substantially  the  same  as  that  existing  in  England,  and 
also  recommended  by  the  late  Synod  of  Maynooth  for  Ireland,  though  its  application  is 
much  wider  with  us  than  in  England.  In  England  this  method  was  established  in  1853 
in  the  following  manner:  A  committee  of  bishops  was  appointed  in  the  First  Provincial 
Council  of  Westminster,  held  July  6,  1852,  for  the  purpose  of  preparing  a  mode  of  procedure 


4i8 


Appendix. 


1519.  I.  Ad  commissionem  investi- 
gationis  non  recurratur,  nisi  prius 
clare  et  praecise  exposita  ab  Episcopo 
causa  ad  deiectionem  finalem  movente, 
ipse  rector  missionarius  malit  rem  ad 
Consilium  deferri  quam  se  a  munere 
et  officio  sponte  dimittere. 


1520.  2.  Re  ad  Consilium  delata, 
Episcopus  vicario  suo  generali  vel  alii 
sacerdoti  ad  hoc  ab  ipso  deputato  com- 
mittat,  ut  relationem  causae  in  scriptis 
conficiat,  cum  expositione  investiga- 
tionis  eo  usque  peractae,  et  circum- 
stantiarum  quae  causam  vel  eiusdem 
demonstrationem   specialiter  afficiant. 


1521.  3.  Locum,  diem,  et  horam 
opportunam  ad  conveniendum  indicet, 
idque  per  litteras  ad  singulos  consilia- 
rios. 

1522.  4.  Per  litteras  etiam  Rectorem 
missionarium,  de  quo  agitur,  ad  locum 
et  diem  constitutum  ad  Consilium 
habendum  advocet  exponens  nisi  pru- 
dentia  vetat,  uli   in   casu  criminis  oc- 


1519.  I.  It  shall  not  be  allowed  to 
have  recourse  to  the  Commission  of 
Investigation  unless  the  bishop  be- 
forehand shall  have  stated  in  clear  and 
precise  terms  the  nature  of  the  cause 
calling  for  final  removal,  and  the  mis- 
sionary rector  shall  have  chosen  to 
have  the  matter  referred  to  the  Council, 
rather  than  to  resign  of  his  own  free 
will. 

1520.  2.  The  matter  having  been 
laid  before  the  Council,  the  bishop 
shall  charge  his  vicar-general,  or  other 

'priest  deputed  for  this  purpose  by  him- 
self, to  draw  up  in  writing  a  statement 
of  the  case,  with  an  account  of  the  in- 
vestigation as  far  as  it  has  gone,  and 
of  the  circumstances  that  may  have  a 
special  bearing  on  the  case  or  its  es- 
tablishment. 

1521.  3.  He  shall  appoint  a  suitable 
place,  day,  and  hour  for  the  meeting, 
and  notify  the  same  by  letter  to  each 
councillor. 

1522.  4.  He  shall  also  by  letter  sum- 
mon the  missionary  rector  in  question 
to  appear  at  the  place  and  time  ap- 
pointed for  holding  the  meeting  of 
the  Council,  staling  in  detail — except 


to  be  followed  in  deposing'  a  missionary  rector  from  his  parish.  The  method  agreed 
upon  by  this  committee  was  submitted  by  Cardinal  Wiseman  to  the  Sacred  Congrega- 
tion of  Propaganda,  and  approved  by  this  Congregation  by  decree  of  August  4,  1853. 
(C.  Prov.  Westmonaster.  I.  apud  Coll.  Lac,  vol.  iii.,pp.  925,  960.) 

A  comparison  of  the  two  documents  shows  that  the  S.  C.  de  P.  F.  took  the  English  docu- 
ment as  the  model  for  ours.  For  the  latter  is  almost  word  for  word  the  same  with  the 
former.  The  following  are  the  only  points  of  difference:  According  to  the  English  docu- 
ment, it  is  necessary  that  two  thirds  of  the  Councillors  should  agree  on  a  verdict  or 
opinion ;  according  to  ours,  it  is  sufficient  that  a  bare  majority  should  agree.  Then 
again,  §  Z,  Si  contingai :  §  i6.  Omnia  acta:  §17,  Si  vera  contingat,  of  our  Instruction 
are  omitted  in  the  English  mode  of  procedure. 

But  apart  from  the  form  of  trial,  there  are  substantial  points  of  difference  as  to  its  ap- 
plication with  us  and  in  England.  In  the  latter  country,  at  least  by  virtue  of  the  First 
Provincial  Council  of  Westminster,  the  benefit  of  the  prescribed  trial  need  be  accorded 
only  in  the  case  of  the  final  removal  of  a  missionary  rector  from  his  parish.  In  the 
United  States  this  trial  must  be  given  a  defendant,  not  only  where  a  rector  (and  with 
us  all  duly  appointed  pastors  are  rectors,  whereas  in  England  only  a  few  pastors — namely, 
those  of  the  principal  parishes — are  rectors)  is  to  be  dismissed,  but  also  where  a  censure  or 
an  ecclesiastical  punishment  or  a  grave  disciplinary  chastisement  is  to  be  inflicted  upon  an 
ecclesiastic,  whether  he  be  a  rector,  or  merely  an  assistant ;  whether  he  be  a  priest,  or  only  a 
deacon  or  sub-deacon,  etc. 


Appendix. 


419 


culti,  causam  ad  deiectionem  moven- 
tem  per  extensum,  monensque  ipsum 
rectorem  ut  responsurn  suis  rationibus 
suffultum  ad  ea  praeparet  in  scriptis, 
quae  in  causae  expositione  vel  iam 
antea  oretenus,  vel  tunc  in  scriptis 
relata  fuerint. 


1523.  5.  Convenientibus  consiliariis 
tempore  et  loco  praefinitis,  praecipiat 
Episcopus  silentium  servandum  de  iis, 
quae  in  Consilio  audiantur;  moneat 
investigationem  non  esse  processum 
iudicialem,  sed  eo  fine  habitam,  et  eo 
modo  faciendam,  ut  ad  cognitionem 
veritatis  diligentioriquapoterit  ratione 
perveniatur,  adeo  ut  unusquisque  con- 
siliarius,  perpensis  omnibus,  opin- 
ionem  de  veritate  factorum,  quibus 
causa  innititur,  efformare  quam  accu- 
rate possit.  Moneat  etiani  ne  quid  in 
investigatione  fiat,  quod  aut  ipsos,  aut 
alios,  periculo  damni  vel  gravaminis 
exponat,  praesertim  ne  locus  detur 
action!  libelli  famosi  vel  alii  cuicumque 
processui  coram  tribunali  civili. 


1524.  6.  Relatio  causae  legatur  co- 
ram Consilio  ab  Episcopi  officiali  qui 
etiam  ad  interpellationes  respondebit 
a  praeside  vel  ab  aliis  consiliariis  per 
praesidem  faciendas  ad  uberiorem  rei 
notitiam  assequendam. 


1525.  7.  Deinde  in  Consilium  intro- 
ducatur  rector  missionarius,  qui  re- 
sponsurn a  se  confectum  leget,  et  ad 
interpellationes  similiter  respondebit, 
facta  ipsi  plena  facultate  ea  omnia  in 
medium  afferendi,  intra  tempus  tamen 
a  Consilio  determinandum,  quae  ad 
propriam  defensionem  conferre  pos- 
sunt. 


where  prudence  forbids,  as  in  the  case 
of  occult  crime — the  cause  that  calls 
for  his  dismissal,  and  warning  him 
further  to  prepare  a  written  answer, 
supported  by  proofs,  to  the  charges 
and  evidence  so  far  given,  and  which 
had  been  already  communicated  to 
him  orally,  or  were  now  (in  the 
bishop's  letter  citing  the  rector)  being 
set  forth  in  writing. 

1523.  5.  When  the  Councillors  assem- 
ble at  the  time  and  place  set  apart 
beforehand,  the  bishop  shall  enjoin 
secrecy  upon  all  matters  brought  be- 
fore the  Council;  he  shall  further  warn 
them  that  the  investigation  is  not  a 
judicial  process,  but  undertaken  for 
the  purpose,  and  to  be  conducted  in 
such  a  manner  as  to  ascertain  the 
truth  with  all  possible  care  and  dili- 
gence; so  that  each  Councillor,  having 
duly  weighed  all  things,  may  be  able 
to  form  an  accurate  opinion  of  the 
facts  on  which  the  case  is  based.  He 
shall  also  warn  them  against  anything 
during  the  investigation  which  might 
expose  themselves  or  others  to  injury; 
above  all,  that  no  occasion  be  given 
for  a  libel  suit  or  other  action  before 
a  civil  tribunal. 

1524.  6.  The  written  statement  of  the 
case  shall  be  read  before  the  Council 
by  the  official  of  the  bishop,  who  will 
also  answer  all  questions  put  to  him 
by  the  president,  or  by  the  other 
Councillors  through  the  president,  in 
order  to  get  at  the  full  truth  of  the 
matter. 

1525.  7.  The  missionary  rector  shall 
then  be  introduced  into  the  Council, 
and  read  the  answer  he  has  prepared, 
and  reply  to  all  questions  put  as  above 
stated.  He  shall,  further,  have  full 
liberty  to  produce,  yet  within  a  period 
of  time  to  be  determined  by  the  Coun- 
cil, whatever  else  may  serve  to  his  de- 
fence. 


420 


Appendix. 


1526.  8.  Si  contingat  rectorem  mis- 
sionarium  de  cuius  causa  agitur,  nolle 
ad  Consilium  accedere,  iterum  datis 
Uteris  vocetur,  eique  congruum  tem- 
poris  spatium  ad  comparendum  prae- 
finiatur,  et  si  ad  constitutum  diem  non 
comparuerit,  dummodo  legitime  prae- 
peditus  non  fuerit,  uti  contumax  habe- 
atur. 

1527.  9.  Quibus  omnibus  rite  exple- 
tis  Consiliarii  simulconsilia  conferant, 
et  si  maior  pars  consiliariorum  satis 
constare  de  factis  arbitretur,  sentcn- 
tiam  suam  unusquisque  consiliarius  in 
scriptis  exponat  rationibus  quibus 
nititur  expressis;  conferantur  senten- 
tiae;  acta  in  Consilio  ab  episcopi  offi- 
ciali  redigantur,  a  praeside  nomine 
consilii  subscribantur,  et  simul  cum 
sententiis  singulorum  in  exlenso  ad 
Episcopum  deferantur. 


1528.  10.  Quod  si  ulterior  investiga- 
tio  necessaria  vel  congrua  videatur, 
eo  ipso  die  vel  alio  ad  conveniendum 
a  Consilio  constitute,  testes  vocentur, 
quos  opportunos  Consilium  iudicav- 
erit,  audito  etiam  rectore  missionario 
de  iis  quos  ipse  advocandos  esse  volu- 
erit. 

1529.  II.  Singuli  testes  pro  causa 
seorsim  et  accurate  examinentur  a  prae- 
side et  ab  aliis  per  praesidem,  absente 
primum  rectore  missionario.  Non  re- 
quiratur  iuramenium,  sed  si  testes  ipsi 
non  renuant  et  se  paratos  esse  declar- 
ent  ad  ea  quae  detulerint  iuramento 
dataoccasione,  confirmanda,  fiat  adno- 
tatio  huiusmodi  dispositionis  seu  de- 
clarationis  in  actis. 


1530.   12.    Consentientibus  testibus, 


1526.  8.  Should  it  happen  that  the 
missionary  rector,  who  is  on  trial,  re- 
fuses to  appear  before  the  Council,  he 
shall  be  summoned  a  second  time  by 
letter,  and  a  suitable  space  of  time 
fixed  for  his  appearance.  Should  he 
fail  to  appear  on  the  day  appointed, 
unless  he  can  plead  a  legitimate  excuse, 
he  shall  be  considered  contumacious. 

1527.  9.  After  all  this  has  been  duly 
done,  the  members  of  the  Commis- 
sion shall  take  counsel  together,  and 
if  the  greater  number  of  the  Coun- 
cillors think  the  facts  sufficiently 
proven,  each  Councillor  shall  state  in 
writing  his  opinion,  with  the  reasons 
on  which  it  is  grounded.  The  opinions 
shall  then  be  compared.  The  acts  of 
the  Council  shall  be  arranged  or  filed 
by  the  bishop's  official,  and  signed  by 
the  president  in  the  name  of  the 
Council,  which,  together  with  the 
opinions  of  each  Councillor  in  full, 
shall  be  laid  before  the  bishop. 

1528.  10.  Should  further  investiga- 
tion be  deemed  necessary  or  opportune, 
on  the  same  day,  or  another  day  fixed 
by  the  Council  for  reassembling,  those 
witnesses  shall  be  called  whom  the 
Council  may  deem  suitable,  the  mis- 
sionary rector  having  also  been  heard 
as  to  the  witnesses  he  may  wish  to 
have  summoned. 

18.  II.  Each  witness  for  the  prose- 
cution shall  be  carefully  examined, 
apart  from  the  rest,  by  the  president, 
and  by  the  other  Councillors  through 
the  president,  and  that  first  in  the  ab- 
sence of  the  missionary  rector.  No 
oath  shall  be  required,  but  if  the  wit- 
nesses themselves  be  willing,  and  de- 
clare themselves  ready,  if  opportunity 
be  given,  to  confirm  by  oath  their  tes- 
timony, a  note  of  this  disposition  or 
declaration  shall  be  made  in  the  min- 
utes of  the  proceedings. 

1530.   12.  Should  the  witnesses  give 


Appendix. 


421 


et  dirigente  prudentia  Consilii,  repe- 
tatur  testimonium  coram  rectore  mis- 
sionario  qui  et  ipse  testes  si  voluerit 
interroget  per  praesidem. 


1531.  13.  Eadem  ratione  qua  testes 
pro  catisa,  examinentur  testes  contra 
causam. 

1532.  14.  Collatis  tunc  consiliis  fiat 
ut  supra  n.  g. 

1533-  15-  Quod  si  testes  nolint  aut 
nequeant  Consilio  assistere,  vel  eorum 
testimonium  nondum  satis  luculentum 
negotium  reddat,  duo  saltem  ex  Con- 
silio deputentur,  qui  testes  adeuntes, 
loca  invisentes,  vel  alio  quocumque 
modo  poterunt,  lumen  ad  dubia  sol- 
venda  requirentes,  relationem  suae  in- 
vestigationis,  ad  Consilium  deferant, 
ut  ita  nulla  via  intentata  relinquatur  ad 
verum  moraliter  certo  cognoscendum 
antequam  ad  sententiae  prolationem 
deveniatur. 

1534.  16.  Omnia  acta  occasione 
judicii  in  medium  allata  accurate  in 
Curia  Episcopal!  custodiantur,  ut  in 
casu  appellationis  commode  exhiberi 
valeant. 


1535-  17-  Si  vero  contingat,  ut  a 
sententia  in  Curia  Episcopali  prolata 
ad  Archiepiscopalem  provocetur,  Met- 
ropolitanus  eadem  methodo  in  causae 
cognitione  et  decisione  procedat. 

Datum  Romae  ex  aedibus  prefatae 
S.  Congregationis  die  20  lulii  anni 
1878.         loANNES  Card.  Simeoni 

Praefectus. 

lOANNES  BaPTISTA  AgNOZZI 

Secretarius . 


their  consent,  and  should  the  Council 
deem  it  prudent,  the  testimony  shall 
be  repeated  in  presence  of  the  mis- 
sionary rector,  who  shall  have  the  right 
of  questioning,  if  he  choose,  the  wit- 
nesses through  the  president. 

1531.  13.  The  witnesses  for  the  de- 
fence shall  be  examined  in  the  same 
way  as  the  witnesses  for  the  prosecu- 
tion. 

1532.  14.  The  Council  shall  then  de- 
liberate, and  act  as  provided  above  in 
No.  9. 

1533-  15-  Should  the  witnesses  be  un- 
willing or  unable  to  appear  before  the 
Council,  or  their  testimony  throw  in- 
sufficient light  on  the  case,  two  mem- 
bers at  least  of  the  Council  shall  be 
deputed,  who  shall  endeavor  by  every 
means  in  their  power  to  clear  up  the 
doubts  in  the  case,  going  to  the  witnes- 
ses, visiting  the  localities,  and  who 
shall  submit  to  the  Council  a  report 
of  their  investigation,  so  that  nothing 
be  left  untried  to  discover  with 
moral  certainty  the  truth  before 
sentence  shall  be  pronounced. 

1534.  16.  All  the  records  and  docu- 
ments of  the  trial  (namely,  the  min- 
utes of  the  proceedings,  the  various 
steps  taken  by  the  Council,  the  docu- 
ments submitted  both  by  the  prosecu- 
tion and  the  defence,  etc.)  shall  be  care- 
fully kept  in  the  (archives  of  the)  episco- 
pal court,  so  that  they  may  be  produced 
without  difficulty  in  case  of  appeal. 

1535-  17-  Should  it  happen  that  an 
appeal  be  taken  from  the  judgment 
pronounced  in  the  episcopal  court  to 
that  of  the  archbishop,  the  metropoli- 
tan shall  proceed  in  the  same  way  in 
the  trial  and  decision  of  the  cause. 

Given  at  Rome,  from  the  house  of 
the  aforesaid  Sacred  Congregation, 
the  20th  day  of  July,  in  the  year  1878. 

John  Card.  Simeoni,  Prefect. 
John  Baptist  Agnozzi,  Secretary, 


422 


Appendix. 


II. 

AD  DUBIA  CIRCA  MODUM  SERVAN- 
DUM  AB  EPISCOPIS  FOEDERATO- 
RUM  SEPTENTRIONALIS  AMERICAE 
STATUUM  IN  COGNOSCENDIS  ET 
DEFINIENDIS  CAUbIS  CklMINALI- 
BUS  ET  DISCIPLINARIBUS  CLERI- 
CORUM. 


1536.  Instructio  diei  20  Julii  1878 
lata  est  de  casibus,  in  quibus  ecclesias- 
tica  poena  seu  censura  sit  infligenda, 
aut  gravi  disciplinari  coercitioni  sit 
locus.  Hinc  Concilii  plenarii  Balti- 
morensis  II.  decreta  N.  125  quoad 
naturam  missionum,  NN.  77,  108 
quoad  juridicos  effectus  remotionis 
missionariorum  ab  officio  nullatenus 
innovata  seu  infirmata  fuerunt. 


1537.  Episcopi  vero  curent,  ne  sac- 
erdotes  sine  gravi  et  rationabili  causa 
de  una  ad  aliam  missionem  invitos 
transferant.  Quod  si  de  alicuius  Rec- 
toris  definitiva  remotione  a  munere  in 
poenam  delicti  infligenda  agatur,  id 
episcopi  executioni  non  mandent  nisi 
audito  prius  Consilio. 


153B.  2.  Electio  consiliariorum  fa- 
cienda  est  in  synodo  ad  instar  deputa- 
tionis,  seucanonicae  electionis  judicum 
synodalium,  qui  non  a  clero,  sed  ab 
episcopo  eliguntur,  audito  quidem  con- 
silio clericorum  in  synodo,  etsi  ex 
causis  sibi  notis  ilhid  ainplecti  postea 
episcopus  noluerit,  ut  bene  observat 
Benedictus  XIV.,  De  Syn.,  lib.  IV. 
cap.  V.  num.  5.  Hinc  absonum  est, 
ut  in  casu  quo  agit  Instructio,  horum 
consiliariorum  electio  ad  clerum  per- 
tineat. 


II. 

(ANSWER  OF  THE  SACRED  CONGRE- 
GATION DE  PROPAGANDA  FIDE) 
CONCERNING  QUESTIONS  (PRO- 
POSED BY  BISHOPS  OF  THE  UNITED 
STATES)  IN  REGARD  TO  THE  MODE 
OF  PROCEDURE  TO  BE  FOLLOWED 
BY  THE  BISHOPS  OF  THE  UNITED 
STATES  OF  NORTH  AMERICA  IN 
TAKING  COGNIZANCE  OF  AND  DE- 
CIDING CRIMINAL  AND  DISCIPLIN- 
ARY CAUSES  OF  ECCLESIASTICS. 

1536.  The  Instruction  of  July  20, 
1878,  applies  to  cases  where  an  eccle- 
siastical punishment  or  censure  is  to 
be  inflicted,  or  where  there  is  room  for 
a  grave  disciplinary  correction.  Hence 
the  decrees  of  the  Second  Plenary 
Council  of  Baltimore,  No.  125,  so  far 
as  regards  the  character  of  the  mis- 
sions (congregations),  and  Nos.  77, 
108,  so  far  as  concerns  the  juridical 
effects  of  the  removal  of  missionaries 
from  office,  have  in  no  wise  been 
changed  or  annulled. 

1537.  Let  bishops,  however,  take 
care  not  to  transfer  priests  against 
their  will  from  one  mission  to  another 
without  grave  and  reasonable  cause. 
But  when  there  is  question  of  defini- 
tively removing  a  (missionary)  rector 
from  his  office  in  punishment  of  a 
crime,  the  bishop  shall  not  make  such 
removal  save  upon  having  beforehand 
listened  to  the  advice  of  the  council. 

1538.  2.  The  election  of  the  coun- 
cillors must  take  place  in  (diocesan) 
synod,  like  the  appointment  or  canoni- 
cal election  of  synodal  judges,  who  are 
chosen,  not  by  the  clergy,  but  by  the 
bishop.  The  latter  (bishop)  shall  in- 
deed, before  making  the  appointment 
of  these  synodal  judges,  take  the  ad- 
vice of  the  clergy  assembled  in  synod, 
though,  for  reasons  knoion  to  himself , 
he  may  not  be  willing  afterivards  to 
follow  this  advice,  as  Benedict  XIV. 
well   remarks   in   his   work  De  Syn,, 


Appendix. 


423 


T539.  Extra  synodum  electio  abso- 
lute ad  episcopum  pertinet,  quem 
decet,  ut  votum  audiat  reliquorum  Con- 
siliariorum  in  casu  subrogationis  ali- 
cuius  qui  defecerit,  prout  episcopus  in 
casu  deficieniis  judicis  synodalis  debet 
exquirere  capituli  consilium,  sed  illud 
sequi  non  tenetur.  • 


1540.  3.  Votum  a  consilio  da'um 
est  semper  consultivum,  et  sententia 
definitiva  episcopo  est  reservata; 
quando  enim  canones  dicunt  aliquid 
ab  episcopo  de  capituli  vel  cleri  con- 
silio agendum  esse,  non  propterea  ne- 
cessitatem  ipsi  episcopo  inducunt  illud 
sequi,  nisi  expresse  id  caulum  sit. 
Hinc  recte  dicitur  in  Instructione,  hos 
consiliarios  episcopo  in  causis  definiendis 
auxiliian  pi-aebere,  minime  vero  ipsos 
deciderc.  Sed  inquisitionis  acta,  et 
op  nio  pandita  a  Consiliariis  est  sem- 
per inserenda  processui. 


1541.  Ex  quibus  patet  officium  con- 
siliariorum  judiciale  qu  dem  esse,  cum 
instructio  sit  iisdem  commissa,  ac  tam- 
quam  adsessores  episcopo  adsistant : 
sed  patet  etiam  judicialis  et  definitivae 
sententiae  prolationem  episcopo  esse 
unice  reservatam. 

1542.  2.  Per  Instructionem  sublata 
non  est  episcopis  extraordinaria  fac- 
ultas,  procedendi  ad  suspensionem  ex 


lib.  v.,  cap.  v.,  num.  5.  Hence  it  is 
incorrect  to  say,  that  in  the  case  of 
which  the  Instruction  treats  the  elec- 
tion of  these  councillors  belongs  to  the 
clergy. 

I53g.  Outside  of  the  synod,  the  ap- 
pointment belongs  absolutely  to  the 
bishop,  although  it  is  becoming  that 
he  should,  in  filling  any  vacancy  which 
may  occur  in  the  Council,  take  the  ad- 
vice of  the  remaining  conncillors,  just 
as  the  bishop,  in  the  case  of  a  vacancy 
occurring  among  the  synodal  judges, 
should  indeed,  before  filling  such  va- 
cancy, ask  the  advice  of  the  chapter, 
tliotigh  he  is  not  bou7id  to  follow  it. 

1540.  3.  The  opinion  given  by  the 
Council  is  always  consultative,  and 
the  final  sentence  is  reserved  to  the 
bishop;  for,  when  the  canons  say  that 
something  is  to  be  done  by  the  bishop 
with  the  advice  of  the  chapter  or  clergy, 
they  do  not  thereby  impose  upon  the 
bishop  the  necessity  of  following  such 
advice,  except  where  this  is  expressly 
declared.  Consequently  the  Instruc- 
tion rightly  says,  that  these  councillors 
aid  the  bishop  in  deciding  causes,  but 
not  by  any  means  that  they  them- 
selves decide.  However,  the  acts  of 
the  investigation  and  the  opinion 
rendered  by  the  councillors  must 
always  be  inserted  in  the  process.' 

1 541.  From  this  it  is  evident  that 
the  office  of  the  councillors  is  judicial 
indeed,  since  the  hearing  of  the  cause 
is  committed  to  them,  and  they  assist 
the  bishop  In  the  capacity  of  assessors; 
but  it  is  also  apparent  that  the  passing 
of  the  judicial  and  final  sentence  is 
reserved  exclusively  to  the  bishop. 

1542.  4.  The  Instruction  does  not 
deprive  bishops  of  the  extraordinary 
power  of  inflicting  suspension  "ex  in- 

1  Consequently  the  above  acts  and  opinions 
must  always  be  preserved,  as  essential  parts 
of  the  whole  trial. 


424 


Appendix. 


informataconscientia,  quatenus  gravis- 
simas  et  canonicas  causas  concurrere 
in  Domino  judicaverint,  aut  gravi  et 
urgente  necessitate  pro  salute  anima- 
rum,  etiam  non  audito  Consilio,  reme- 
dio  aliquo  providendum  esse  censu- 
erint. 


1543.  Liberum  cuique  rectori  est 
alium  sacerdotem  ab  episcopo  appro- 
bandum  secum  habere  coram  consilio 
siv  •  ad  simplicem  dsistentiam  sive 
ad  suas  animadversiones  aut  defen- 
sionem  exhibendam. 

loAN  Card.  Simeoni, 

Sacr.  Cong.  Praef. 
I.  B.  Agnozzi, 

Secret. 


formata  conscientia,"  if  in  the  Lord 
they  come  to  the  conclusion  that  most 
grave  and  canonical  causes  exist  there- 
for, or  if  they  believe  that,  owing  to 
grave  and  urgent  necessity,  provision 
must  be  made  for  the  salvation  of 
souls,  by  some  extraordinary  remedy, 
even  without  having  previously  heard 
the  advice  of  the  Council. 

1543.  Every  rector  is  free  to  have 
,with  him  before  the  Council  another 
priest,  who  must  be  approved  by  the 
bishop,  in  order  either  to  simply  assist 
him  (the  rector),  or  to  make  remarks, 
or  to  conduct  the  defence. 

John  Card.  Simeoni, 
Prefect  of  the  Sacred  Congregation. 
J.  B.  Agnozzi, 
Secretary. 


III. 


THE  CANONICAL  TRIAL  ADAPTED  TO  THE  WANTS  OF  THE 
PRESENT  DAY— INSTRUCTION  OF  THE  S.  C.  EE.  ET  RR. 
AUTHORIZING  ORDINARIES  IN  COUNTRIES  NOT  SUBJECT 
TO  THE  PROPAGANDA,  TO  CONDUCT  ECCLESIASTICAL 
TRIALS,  WITHOUT  OBSERVING,  IN  CERTAIN  CASES,  ALL 
THE   FORMALITIES   PRESCRIBED    BY   CANON  LAW. 


Instructio  pro  Ecclesiasticis  Curiis  quoad  modujn  procedendi  oeconomice  in  causis 
disciplinaribus  et  criminalibus  clericoru/n.^ 

1544.  Die  II  lunii  1880. — Sacra  haec  EE.  et  RR.  Congregatio,  mature 
praesenti  Ecclesiae  conditione  perpensa,  quae  pene  ubique  impeditur,  quominus 
externam  explicet  suam  actionem  super  materias  et  personas  ecclesiasticas,  et 
considerate  quoque  defectu  mediorum  aptorum  pro  regulari  Curiarum  ordina- 
tione,  constituit  facultatem  Ordinariis  locorum  expresse  concedere,  ut  formas 
magis  oeconomicas  adhibere  valeant  in  exercitio  suae  disciplinaris  iurisdictionis 
super  Clericis.  Ut  autem  tota  iustitiae  ratio  sarta  tectaque  maneat,  ser- 
veturque  processuum  canonica  regularitas  et  uniformitas,  opportunum  censuit 
sequentes  emanate  normas,  a  Curiis  servandas. 

1  This  Instruction  is  of  preat  practical  importance  also  for  this  country,  since  its  pro- 
visions tend  manifestly  to  explain  the  Instruction  of  the  S.  C.  de  P.  F.,  of  July  20,  1878. 
Cf.  supra,  n.  1512  sq.;  Acta  S.  Sedis,  vol.  13,  p.  324  sq. 


Appendix.  425 


1545.  I.  Ordinario  pastorale  onus  incumbit  disciplinam  correctionemque 
Clericorum  a  se  dependentium  curandi,  super  eorumdem  vitae  rationetn  vigi- 
lando,  remediisque  utendo  canonicis  ad  praecavendas  apud  eosdem  et  elimi- 
nandas  ordinis  perturbationes. 

1546.  II.  Ex  his  remediis  alia  praeveniunt,  alia  reprimunt  et  medelam  affer- 
unt.  Priora  ad  hoc  diriguntur  ut  impediant  quominus  malum  adveniat,  ut 
scandali  stimuli,  occasiones  voluntariae,  causaeque  ad  delinquendum  proximae 
removeantur.  Altera  finem  habent  revocandi  delinquentes  ut  sapiant  reparent- 
que  admissi  criminis  consequentias. 

1547.  III.  Conscientiae  et  prudentiae  Ordinarii  horum  remediorum  incumbit 
applicatio,  iuxtacanonum  praescriptiones,  etcasuum  adiunctorumque  gravitatem. 

154S.  IV.  Mediis  quae  praeservant  praecipue  accensentur  spiritualia  exer- 
citia,  monitiones  et  praecepta. 

1549.  V.  Has  provisiones  praecedere  debet  summaria  facti  cognitio  quae 
ab  Ordinario  notanda  est,  ut  ad  uUeriora  procedere,  quatenus  opus  sit,  et  cer- 
tiorem  reddere  queat  superiorem  Auctoritatem,  in  casu  legitimi  recursus. 

1550.  VI.  Canonicae  monitiones  fiunt  sive  in  forma  paterna  et  secreta 
(etiam  per  epistolam  aut  per  interpositam  personam)  sive  in  forma  legali,  ita 
tamen  ut  de  earumdem  executione  constet  ex  aliquo  actu. 

1551.  VII.  Quatenus  infructuosae  monitiones  evadant,  Ordinarius  praecipit 
Curiae,  ut  delinquenti  analogum  iniungatur  praeceptum,  in  quo  declaretur  quid 
eidem  agendum  aut  omittendum  sit,  cum  respondentis  poena  ecclesiasticae 
comminatione,  quam  incurret  in  casu  transgressionis. 

1552.  VIII.  Praeceptum  intimatur  praevento  a  Cancellario  coram  Vicario 
Generali;  sive  coram  duobus  testibus  ecclesiasticis  aut  laicis  probatae  integri- 
tatis. 

§  I,  Actus  subsignatur  a  partibus  praesentibus  et  a  praevento  quoque,  si 
velit. 

§  2.  Vicarius  Generalis  adiicere  valet  iuramentum  servandi  secretum,  qua- 
tenus id  prudenter  expetat  tituli  indoles,  de  quo  agitur. 

1553.  IX.  Quoad  poenalia  media,  animadvertant  reverendissimi  Ordinarii, 
praesenti  instructione  baud  derogatum  esse  iudiciorum  solemnitatibus,  per 
sacros  Canones,  per  Apostolicas  Constitutiones  et  alias  ecclesiasticas  dis- 
positiones  imperatis,  quatenus  eaedem  libere  efficaciterque  applicari  queant; 
sed  oeconomicae  formae  consulere  intendunt  illis  casibus  Curiisque,  in  quibus 
solemnes  processus,  aut  adhiberi  nequeant,  aut  non  expedire  videantur. 
Plenam  quoque  vim  servat  suam  extraiudiciale  remedium  ex  informata  conscien- 
tia  pro  criminibus  occultis,  quod  decrevit  s.  Tridentina  Synodus  in  Sess.  14  cap. 
I.  de  Reform,  adhibendum,  cum  illis  regulis  et  reservationibus,  quas  constanter 
servavit  pro  dicti  capitis  interpretatione  s.  C.  Congregatio  in  pluribus  resolu- 
tionibus,  et  praecipue  in  Bosnien.  et  Siriuien.  20  Decembris  1873.^ 

1554.  X.  Quum  procedi  oporteat  criminaliter,  sive  infractionis  praecepti, 
aut  criminum  communium,  vel  legum  Ecclesiae  violationis  causa,  processus 
confici  potest  formis  summariis  et  absque  iudicii  strepitu,  servatis  semper  regu- 
lis iustitiae  substantialibus. 

•  Cf.  Acta  S.  Sedis,  vol.  vii.  pag.  569. 


426  Appendix. 

1555.  XI.  Processus  instruitur  ex  officio  aut  in  sequelam  supplicis  libelli  et 
querelae,  aut  noiitiae,  alio  modo,  a  Curia  habitae,  et  ad  finem  perducitur  eo 
consuio,  ut  omni  studio  atque  prudentia  Veritas  detegatur,  et  cognitio  turn 
criminis,  cum  reitatis  aut  innocentiae  accusati  exurgat. 

1556.  XII.  Processus  confectio  committi  potest  alicui  proboat  que  idoneo 
ecclesiastico,  adstante  Actuario. 

1557.  XIII.  Unicuique  Curiae  opus  est  Procuratore  fiscali  pro  iustitiae  et 
legis  tutela. 

1558.  XIV.  Quatenus  pro  intimationibus  aut  notificationibus,  baud  praesto 
sit  opera  Apparitorum  Curiae,  suppietur  exhibitione  earumdem  explenda  per 
qualificatam  personam,  quae  de  facto  cerlioret;  sive  eas  transmittendo,  ope 
commendationis  penes  tabellariorum  officium.illis  in  locis  in  quibus  hoc  invaluit 
systema,  exposcendo  fidem  exhibitionis,  receptionis  aut  repudii. 

1559.  XV.  Basis  facti  criminosi  constitui  potest  per  expositionem  in  pro- 
cessu  habitam,  authenticis  roboratam  informationibus  aut  confessionibus  extra- 
iudicialibus.  vel  testium  depositionibus,  et  quoad  titulum  transgressionis  prae- 
cepti  constat  per  novam  exhibitionem  decreti  et  actus  indictionis,  perfectorum 
modis  enuntiatis  Art.  VII.  et  VIII. 

1560.  XVI.  Ad  retinendam  in  specie  culpabilitatem  accusati  opus  est  pro- 
batione  legali,  quae  talia  continere  debet  elementa,  ut  veritatem  evincat,  aut 
saltem  inducat  moralem  certitudinem,  remoto  in  contrarium  quovis  rationabili 
dubio. 

1561.  XVII.   Personae,  quas  examinare  expediat,  semper  audiunturseparatim. 

1562.  XVIII.  Testes  ad  probationem,  aut  ad  defensionem,  quoties  legalia 
obstacula  baud  obsistant,  sub  iuramento  audiri  debent,  quod  extendi  potest,  si 
opus  sit,  ad  obligationem  secreti. 

1563.  XIX.  Testium  absentium,  aut  in  aliena  Dioecesi  morantium  exposcitur 
examen  in  subsidium  ab  Ecclesiastica  loci  auctoritate,  eidem  transmittendo  pros- 
pectum  facti;  et  Auctoritas  requisita  petitioni  respondet,  servando  praesentis 
instructionis  normas. 

1564.  XX.  Quoties  indicentur  testes  ob  facta  aut  adiuncta  essentialiter 
utilia  merito  Causae,  qui  examini  subiici  nequeant,  eoquod  censeatur  baud  con- 
venire  ut  vocentur,  aut  quia  vocati  abnuant,  mentio  eorumdem  fit  in  actibus,  et 
curatur  supplere  eorum  defectui  per  depositiones  aliorum  testium,  qui  de  relate 
aut  alia  ratione,  noverint  id  quod  exqulritur. 

1565.  XXI.  Quum  collectum  fuerit  quidquid  opus  sit  ad  factum  et  accusati 
responsabilitatem  constituendam,  vocatur  iste  ad  examen. 

1566.  XXII.  In  indictione,  nisi  prudentia  id  vetet,  exponuntur  ei  per  extensum 
accusationes  adversus  eum  collatae,  ut  parari  valeat  ad  respondendum. 

1567.  XXIII.  Quando  autem  ob  accusationum  qualitates,  aut  ob  alia  adiuncta 
prudens  non  sit  in  actu  intimationis  eas  patefacere,  in  hac  solum  innuitur 
eumdem  ad  examen  vocari  ut  sese  excuset  in  Causa,  quae  ipsum  respicit  uti 
accusatum. 

1568.  XXIV.  Si  iudicio  sistere  abnuat,  iteratur  indictio,  in  quo  eidem  praefigitur 
congruum  peremptorium  terminum,  eique  significatur  quod  si  adhuc  obedire 
renuat,  habebitur  ceu  contumax;  et  pro  tali  in  facto  aestimabitur,  quatenus 
absque  probato  legitime  impedimento,  istam  quoque  posthaberet  intimationem. 


Appendix.  427 


1569.  XXV.  Si  compareat,  auditur  in  examine;  et  quatenus  inductionesfaciat 
alicuius  momenti,  debent  istae,  quantum  fieri  potest,  exliauriri. 

1570.  XXVI.  Proceditur  inde  ad  contestationem  facti  criminosi,  et  conclu- 
sionum  habitarum,  ad  retinendum  accusatum  criminosum  lapsumque  in  relativis 
poenis  canonicis. 

1571.  XXVII.  Quum  accusatus,  tali  modo,  habeat  plenam  cognitionem  eius 
quod  in  actis  extat  contra  se,  ultra  quod  respondere  possil,  iure  sedefendendi  a 
semetipso  etiam  uti  valet. 

1572.  XXVIII.  Potest  quoque,  si  id  expetat,  obtinere  praefixionem  termini  ad 
exhibendam  defensionem  cum  memoria  in  scriptis,  praecipue  quando  ob  dis- 
positionem  Art.  XXIII.  nequiverit  paratus  esse  ad  responsa  pro  sua  excusa- 
lione. 

1573.  XXIX.  Expleto  processu,  actorum  instructor,  restrictum  conficit  essen- 
tialium  conclusionum  eiusdem. 

1574.  XXX.  In  die  qua  Causa  proponitur,  est  in  facultate  accusati  faciendi 
se  repraesentare  et  defendere  ab  alio  Sacerdote  aut  laico  Patrocinatore,  antea 
approbatis  ab  Ordinario. 

1575.  XXXI.  Quatenus  praeventus  constituere  defensorem  renuat,  Ordinarius 
consulit  constituendo  aliquem  ex  officio. 

1576.  XXXII.  Defensor  caute  nolitiam  haurit  processus  et  restricti  in  Cancel- 
laria,  ut  paratus  sit  ad  defensionem  peragendam,  quae  ante  propositionem  causae 
exhiberi  potest  in  scriptis.  Ipse  quoque  subiicitur  oneri  secret!  iurati,  quatenus 
Ordinario  videatur  indolem  Causae  id  expostulare. 

1577.  XXXIII.  Transmittiturdein  Procuratori  fiscali  processus  et  restrictus,  ut 
munere  suo  ex  officio  fungatur;  uterque  Ordinario  traditur  qui  plena  Causae 
cognitione  adepta,  diem  constituit  in  qua  disceptanda  et  resolvenda  sit,  curans 
ut  accusatus  certior  de  hoc  fiat. 

1578.  XXXIV.  Die  constituta  proponitur  Causa  coram  Vicario  general!,  inter- 
essentibus  Procuratore  fiscali,  Defensore  et  Cancellario. 

1579.  XXXV.  Post  votum  Procuratoris  Fisci  et  deductiones  defensionis  pro- 
fertur  sententia,  dictando  dispositivam  Cancellario,  cum  explicita  mentione, 
in  casu  damnationis,  canonicae  sanctionis,  accusato  applicatae. 

1580.  XXXVI.  Sententia  indicitur  praevento,  qui  appellationem  interponere 
potest  ad  Auctoritatem  Ecclesiasticam  superiorem. 

1581.  XXXVII.  Pro  appellatione  servantur  normae  statutae  a  Constitutione 
Ad  ntilitantes  %.  m.  Bened.  XIV.  30  Martii  1742,  aliaeque  emanatae  ab  hac  s. 
Congregatione  Decreto  18  Decembris  1835  '  et  Littera  circular!  diei  i  Augusti 
1851. 

1  En  in  commodum  lectorum  decretum  huiusmodi.  Haud  referimus  litteram  prolixam 
diei  I  Aug^usti  1831,  quoniam  praecipuae  eiusdem  praescriptiones  in  praesenti  Instructione 
relatae  nobis  videntur. 

Decretum  pro  Causis  Criminalibus.  Non  ita  pridem  a.  s.  Congregatione  negociis,  et 
consultationibus  Episcoporutn,  et  Regularium  praepositae  nonnullae  regulae  praescriptae 
fuerunt  pro  recta,  et  expedita  definitione  causarum  criminalium,  quae  a  Curiis  Episcoporum, 
vel  Ordinariorum  ad  eamdem  s.  Congregationem  in  gradu  appellationis  deferuntur.  Quas 
quidem  praescriptiones,  quoniam  impedimenta  sublata  sunt,  quae  aliqua  ex  parte  earum 
executioni  interposita  fuerant,  visum  est  Eminentissimis  Patribus  in  Conventu  habito  xv. 
Calend.   Januar.   mdcccxxxv.  uberius  explicare,  et  cum  assensu,  et  approbatione  S.  D,  N. 


428  Appendix. 

1582.  XXXVIII.  Comparitio  pro  appellatione  facienda  est  infra  terminum 
decern  dierum  a  notificatione  sententiae;  quo  termino  inutiliter  elapso,  sententia 
ipsa  in  executionis  statu  reperitur. 

1583.  XXXIX.  Interposita  appellatione  infra  decern  dies,  Curia  absque  mora 
remittit  ad  Auctoritatem  ecclesiasticam  superiorem,  apud  quam  appellatio  facta 
est,  omnes  actus  Causae  originales,  idest  processum,  restrictum,  defensiones 
et  sententiam. 

1584.  XL.   Auctoritas    ecclesiastica    superior,  capta   cognitione  actus   appel- 

Gregorii  XVI.  iterum  promulgare,  ut  ab  omnibus,  ad  quos  pertinent,  accuratissimae  serventur. 
Sunt  autem  quae  sequuntur. 

I.  Reis  a  Curiis  Episcopalibus  criminali  iudicio  damnatis  spatium  dierum  decern  conceditur, 
quo  ad  s.  Congregationera  Episcoporum,  et  Regulanum  appellare  possint. 

II.  Decem  dies  numerari  incipient  non  a  die,  quo  sententia  lata  est,  sed  a  die,  quo  reo  vel 
eius  defensor!  per  Cursorem  denunciata  fuit. 

III.  Eo  tempore  elapso,  qui n  reus  vel  eius  defensor  appellaverit,  latam  a  se  sententiam 
Episcopus  exequetur. 

IV.  Interposita  intra  decem  dies  appellatione  Curia  Episcopalis  acta  autographa  totius 
causae  ad  s.  Congregationem  continue  transmittal,  nempe 

1.  Processum  ipsum  in  Curia  confectum. 

2.  Eius  restrictum,  seu  compendiariam  expositionem  eorum,  quae  ex  eodem 

processu  cmergunt. 

3.  Defensiones  pro  reo  exhibitas. 

4.  Denique  sententiam  latam. 

V.  Ipsa  Curia  reo,  eiusque  defensori  denunciabit,  appellationem  coram  eadem  s.  Congre- 
gatione  prosequendam  esse. 

VI.  Si  nemo  compareat,  aut  si  appellationis  acta  negligenter  vel  malitiose  protrahantur, 
•ongruens  tempus  a  s.  Congregatione  praeiinietur,  quo  inutiliter  elapso,  causa  deserta  cen- 
seatur,  et  sententia  Curiae  Episcopalis  execution!  mandetur. 

VII.  Reo,  aut  illi,  qui  eius  defensionem  suscepit,  tradendus  est  restrictus  processus,  qui  a 
Judice  relatore  conficitur. 

VIII.  Allegationes,  seu  defensiones  Eminentissimis  Patribus  distribuendas  typis  non  com- 
mittantur,  nisi  ludex  relator  imprimendi  veniam  dederit. 

IX.  Causa  definietur  stata  die  ab  Eminentissimis  Patribus  in  pleno  Auditorio  congregatis. 

X.  Eidem  Congregationis  Procurator  Generalis  Fisci,  et  Judex  relator  intererunt. 

XI.  Index  relator  de  toto  statu  causae  ad  Eminentissimos  Patres  refert,  et  Procurator 
Generalis  Fisci  stabil  pro  Curia  Episcopali,  suasque  conclusiones  explanabit. 

XII.  Post  haec  Eminentissimi  Patres  indicium  proferent,  sententiam  Curiae  Episcopalis  aut 
confirmando,  aut  infirmando  aut  etiam  reformando. 

XIII.  Prolata  Sententia  una  cum  omnibus  Actis  causae  ad  eamdem  Curiam  Episcopalem 
remittitur,  ut  eam  exequatur. 

XIV.  Revisio,  seu  recognitio  rei  iudicatae  non  conceditur,  nisi  eius  tribuendae  potestas  a 
Sanctitate  Sua  facta  fuerit,  et  subsint  gravissimae  causae,  super  quibus  cognitio,  et  indicium 
ad  plenam  Congregationem  periinet. 

XV.  Sciant  denique  Curiae  Episcopales  per  novissimas  leges,  quae  ad  investiganda,  et 
coercenda  crimina  pro  Tribunalibus  laicis  promulgatae  sunt,  nihil  detractum  esse  de  formis,  et 
regulis  Canonicis,  quas  proinde  sequi  omnino  debent,  non  modo  in  conficiendo  processu,  ad 
quem  spectant  haec  verba  Edicti  die  5  Novembris  1831  -  Nihil  innovetur,  gttantum  ad  iudicio. 
ecclesiastica pertinet  -  verum  etiam  in  poenis  decernendis,  quemadmodum  in  appendice  eius- 
dem  Edicti  ita  cautum  est  -  Tribunalia  iurisdictionis  mixtae  Clericos,  et  Personas  ecclesi- 
asticas  iis poenis  mulctabunt,  guns  secundum  Canones,  et  Constitutiones  Apostolicas  Tribunal 
Ecclesiasticum  iisdem  irrogaret  -. 

J.  A.  Card.  Sala  Praefectus. 
I.  Patriarcha  Constantinopolitanus  Seer. 


Appendix,  429 


lationis,  intimare  facit  appellanti,  ut  infra  terminum  viginti  dierum  Defensorem 
constituat,  qui  approbari  debet  ab  eadem  superiori  auctoritate. 

15S5.  41.  Decurso  dicto  termino  peremptorio  absque  effectu,  censetur 
appellantem  nuncium  misisse  appellationis  beneficio,  et  haec  consequenter 
perempta  declaratur  a  superiori  auctoritate. 

1586.  42.  Quum  appellatio  producitur  a  sententia  alicuius  Curiae  episco- 
palis  ad  Metropolitanam,  Archiepiscopus  pro  cognitione  et  decisione  Causae 
sequitur  normam  procedendi  in  hacinstructione  traditam. 

1587.  43.  Si  contingat  quod  Clericus,  non  obstante  fori  privilegio,  ob 
crimina  communia  subiiciatur  processui  et  iudicio  laicae  potestatis,  Ordinarius, 
hoc  in  casu,  summariam  sumit  criminosi  facti  cognitionem,  atque  perpendit  an 
ipsum,  ad  tradita  per  sacros  canones,  locum  faciat  infamiae,  irregularitati,  aut 
alii  ecclesiasticae  sanctioni. 

§  I.  Donee  iudicium  pendeat,  aut  accusatus  detentus  sit,  prudens  est,  quod 
Ordinarius  sese  limitet  ad  media  provisoria. 

§  2.  Expleto  tamen  iudicio,  et  libero  reddito  accusato,  Curia  iuxta  exitum 
informationum  ceu  superius  assumptarum,  procedit  ad  tramites  dispositionum 
praesentis  instructionis. 

1588.  44.  In  casibus  dubiis,  et  in  variis  practicis  difiicultatibus,  quae  con- 
tingere  possint,  Ordinarii  consulant  banc  s.  Congregat.,  ad  vitandas  con- 
tentiones  et  nullitates. 

Ex     Aud.     SSnii.     did     II  lunii  i88o. 

SSmns  Diius  Noster  LEO  div.  prov.  PP.  XI TL,  audita  relatione  praesentis 
Instructionis  ab  ittfrascripto  Sacr.  Congteg.  Episcopor.  et  Regularium  Secretariat, 
earn  in  omnibus  approbare  et  confirmare  dignatus  est. 

Romae  die  et  anno  quibus  supra. 

I.  Card.  Ferrieri  Praef. 

I.  B,  Agnozzi  Secretarius ... 


430  Appendix. 


IV. 
CONSTITUTIO 

BENEDICTI   PP.    XIV. 

In  qua  praescribitur  ordo  et  forma  in  iudiciis  Causarum  matrimonialium  super 
matrimoniorum  validitate  vel  nullitate  declaranda  servandus} 

BENEDICTUS 
EPISCOPUS 

SERVUS   SERVORUM    DEI    AD    PERPETUAM    REI    MEMORIAM. 

1589.  Dei  miseratione,  cuius  iudicia  incomprehensibilia  sunt,  et  viae  investiga- 
biles,  in  suprema  Ecclesiae  specula  immerentes  constituti,  uf  super  universum 
Dominicum  gregem  excubias  sedulo  agamus,  ad  commissum  pastoralis  officii 
munus  pertinere  dignoscimus  subnascentes  ex  infernalis  hostis  astutia,  et  homi- 
num  malitia  abusus,  quibus  et  animarum  saluti  pernicies,  et  sacramentis  Eccle- 
siae iniuria  infertur,  radicitus  evellere,  et  potestatis  Nobis  desuper  traditae 
operam  interponere,  ut  et  humana  cohibeatur  temeritas,  et  veneranda  divinae 
legis  servetur  auctoritas. 

1590.  §  I.  Siquidem  matrimonii  foedus  a  Deo  institutum,  quod  et  quatenus 
naturae  officium  est,  pro  educandae  proHs  studio,  aliisque  matrimonii  bonis 
servandis,  perpetuum  et  indissolubile  esse  convenit;  et  quatenus  est  catholicae 
Ecclesiae  sacramentum,  humana  praesumptione  dissolvi  non  posse,  Sal vator  ipse 
ore  suo  pronunciavit  dicens:  Quod  Deus  coniunxit,  homo  non  separet;  ad  auras 
Apostolatus  Nostri  pervenit,  in  quibusdam  ecclesiasticis  Curiis  inconsulta  nimis 
iudicum  facilitate  infringi,  et  temere  atque  inconsiderate  deeorumdem  matrimo- 
:niorum  nullitate  latis  sententiis,  potestatem  coniugibus  fieri  transeundi  ad  alia 
•vota.  Quos  sane  improvidos  iudices  humanae  naturae  conditione  et  voce  ipsa 
quodammodo  admoneri  oportebat,  ne  tam  praecipiti  audacia  sanctum  matrimo- 
nii nexum  frangerent,  quem  perpetuum  atque  indissolubilem  primus  humani 
generis  parens  praemonuit  inquiens:  Hoc  nunc  os  ex  ossibus  meis,  et  caro  de  came 
7Hea,  et  illud  additum  est:  Quamobrem  relinquet  homo  patrem  suum  et  matrem,  et 
adhaerebit  uxori  suae,  et  erunt  duo  in  came  una. 

1591.  §  2.  Huiusmodi  autem  abolendae  pravitatis  notitia  diversis  ex  partibus 
Nobis  delata  est,  atque  etiam  indicata  sunt  exempla  nonnuUorum  virorum,  qui 
post  primam  et  secundam  ac  tertiam,  quam  duxerant,  uxorem  ob  nimiam  iudi- 
cum praecipitantiam  in  nullitate  matrimoniorum  declaranda,  adhuc  illis  primis 
uxoribus  superstitibus,  ad  quartas  contrahendas  nuptias  devenerant;  et  similiter 
feminarum,  quae  post  primum,  secundum  et  tertium  maritum,  quarto  etiam,  illis 
quoque  viventibus,  se  iunxerant,  non  sine  pusillorum  scandalo,  et  bonorum  om- 
nium detestatlone,  qui  sacra  matrimonii  vincula  ita  contemni,  et  temere  per- 

'  Nearly  this  whole  constitution  is  taken  up  in  defining  the  duties  of  the  judge,  of  the  de- 
fender of  the  marriage,  the  force  and  effect  of  sentences  in  matrimonial  causes.  Cf.  supra, 
n.  1450,  sg. 


Appendix.  43 1 

fringi  dolebant.  Nos  autem,  his  intellectis,  gravi  affecti  dolore,  intimo  animo 
ingemulmus,  et  non  praetermisimus  apostolicae  nostrae  sollicitudinis  partes  in 
Domino  adimplere.  Siquidem  primo  Pontificatus  nostri  anno  ad  Episcopos  il- 
larum  partium,  in  quibus  praedicta  acciderant,  plenissimis  datis  literis,  graviter 
conquest!  sumus  de  huiusmodi  pravitate,  quae  in  Ecclesia  Dei  tolerabatur,  et  ad 
earn  abolendam  eorum  animos  erigere,  et  pastoralem  zelum  accendere  curavi- 
mus:  quod  etiam  egimus  cum  aliis  aliarum  regionum  Episcopis,  ubi  huiusmodi 
pravum  dirimendorum  matrimoniorum  usum  irrepsisse  cognovimus. 

1592.  §  3.  Verum  Nobis  responsum  est,  id  saepe  contingere  partim  ex  culpa 
illorum  ludicum,  quibus  vel  in  prima  instantia,  cum  causa  coram  ludice  ordina- 
rio  ex  aliqua  legitima  causa  cognosci  nequit,  vel  in  secunda,  cum  in  partibus 
nullus  adest  ludex,  ad  cuius  tribunal  causa  in  gradu  appellationis  devolvatur, 
vel  si  adest,  iusta  de  causa  coram  eo  disceptari  nequit,  causae  matrimoniales 
huiusmodi  a  Sede  apostolica  committuntur,  qui  vel  ob  inscitiam,  vel  ob  malam 
voluntatem  proclives  sunt  ad  matrimonia  dissolvenda,  atque  eadem  matrimonia, 
levi  vel  etiam  nullo  habito  examine,  irrita  ac  invalida  declarant;  partim  etiam 
ex  facto  coniugum  super  nullitate  suorum  matrimoniorum  litigantium,  cum  fre- 
quenter unus  tantum  eorum,  qui  dissolutionem  matrimonii  postulat,  in  iudicio 
compareat,  et  senientia,  nullo  contradicente,  secundum  sua  vota  obtenta,  ad 
alias  nuptias  convolat;  vel  ambobus  coniugibus  in  indicium  venientibus,  alter 
qui  pro  matrimonio,  alter  vero  qui  contra  agit,  sententia  de  nullitate  matrimonii 
prolata,  nullus  est,  qui  ad  superiorem  ludicem  appellationem  interponat,  vel 
quia  litigantes  in  specie  quidem  discordes,  re  vera  inter  se  Concordes  sunt,  et 
invicem  colludentes,  contractum  matrimonium  dissolvi  cupiunt;  vel  quia  pars, 
quae  pro  validitate  matrimonii  stabat,  eiusque  nullitatem  acriter  contra  adver- 
sarium  impugnabat,  lata  a  ludice  sententia  contra  matrimonium,  mutat  volunta- 
tem, vel  pecunia  sibi  ad  sumptus  litis  non  suppetente,  vel  aliis  deficientibus  aux- 
iliis  ad  litigandum  necessariis,  et  incoeptum  opus  ac  causam  post  primam  sen- 
tentiam  deserit.  Quo  fit,  ut  deinde  ambo  coniuges,  vel  unus  eorum  ad  aliud 
contrahendum  matrimonium  se  conferat. 

1593-  §  4-  Quod  autem  ad  Indices  pertinet,  quibus  extra  romanam  Curiam 
pro  litigantium  commodo  causae  matrimoniales  committuntur,  paterna  ilia  vigi- 
lantia,  qua  de  iustitia  unicuique  integre  sapienterque  administranda  solliciti  esse 
debemus,  encyclicis  literis  ad  venerabiles  fratres  Patriarchas,  Primates,  Archi- 
episcopos  et  Episcopos  scriptis  vicesima  sexta  augusti  anno  secundo  Pontificatus 
nostri,  providere  curavimus,  in  quibus  ea  praescripsimus,  quae  sacris  Canoni- 
bus,  et  Concilii  tridentini  decretis  consona,  si  diligenter,  utsperamus,  serventur, 
in  posterum  causae  non  nisi  personis  congrua  iuris  peritia  et  necessario  probi- 
tatis  spectataeque  fidei  munitis  praesidio  committentur.  Insuper  ad  ea,  quae  in 
iisdem  encyclicis  literis  constituta  sunt,  id  etiam  in  praesenti  adiungimus;  quod, 
quamvis  Concilii  tridentini  decretum,  quo  causae  matrimoniales  subtractae  fue- 
runt  Decani,  Archidiaconi  et  aliorum  inferiorum  iudicio,  et  Episcoporum  tantum 
examini  et  iurisdictioni  reservatae,  dumtaxat  procedat  de  Archidiaconis,  Deca- 
nis,  aliisque  inferioribus,  qui  in  eadem  dioecesi  constituti,  vel  privilegio  aliquo 
vel  praescriptione,  saltem  in  visitatione,  causarum  matrimonialium  cognitionem 
sibi  adrogabant;  ac  idcirco  minime  obstet  commissionibus,  quae  pro  iisdem  cau- 
sis  matrimonialibus  definiendis  a  Sede  apostolica  alicui  eorum  in  secunda  instan- 


432  Appendix. 


tia  fierent;  nihilominus  praecipimus  ac  mandamus  iis,  ad  quos  huiusmodi  com- 
missionum  seu  delegationum  expediendarum  cura  pertinet,  ut  in  futurum 
causarum  matrimonialium  cognitionem  non  committant  nisi  Episcopis  prae- 
sertim  vicinioribus,  vel  si  nullus  sit  Episcopus,  cui  ex  legitima  causa  commode 
committi  possit,  turn  commissio  et  delegatio  dirigatur  uni  ex  iis,  qui  secundum 
ordinem  et  modum  a  Nobis  in  praefatis  encyclicis  literis  praescriptum  pro  ludice 
idoneo  ab  Episcopo  cum  consilio  sui  Capituli  nominatus  fuerit. 

1594.  §  5.  Quod  vero  ad  ordinem,  et  seriem  iudiciorum  in  causis  matrimoni- 
alibus  pro  debita  et  congrua  earum  terminatione  servandum  spectat,  motu  pro- 
prio,  certa  scientia  ac  matura  deliberatione  nostris,  deque  apostolicae  potestatis 
plenitudine  hac  nostra  in  perpetuum  valitura  sanclione  constituimus,  decerni- 
mus  ac  iubemus,  ut  ab  omnibus  et  singulis  locorum  Ordinariis  in  suis  respective 
dioecesibus  persona  aliqua  idonea  eligatur,  et  si  fieri  potest,  ex  ecclesiastico  coetu, 
iuris  scientia  pariter  et  vitae  probitate  praedita,  quae  matrimoniorum  defensor 
nominabitur,  cum  facultate  tamen  earn  suspendendi,  vel  removendi,  si  iusta 
causa  adfuerit,  et  substituendi  aliam  aeque  idoneara  et  iisdem  qualitatibus  orna- 
tam,  quod  etiam  fieri  poterit,  quotiescumque  persona  ad  matrimoniorum  defen- 
sionem  destinata,  cum  se  occasio  agendi  obtulerit,  erit  legitime  impedita. 

1595.  §  6.  Ad  ofRcium  autem  defensoris  matrimoniorum  huiusmodi,  ut  supra 
electi,  spectabit  in  iudicium  venire  quotiescumque  contigerit,  matrimoniales 
causas  super  validitate  vel  nullitate  coram  legitimo  ludice  disceptari,  eumque 
oportebit  in  quolibet  actu  iudiciali  citari,  adesse  examini  testium,  voce  et  scrip- 
tis  matrimonii  validitatem  tueri,  eaque  omnia  deducere,  quae  ad  matrimonium 
sustinendum  necessaria  censebit. 

1596.  §  7.  Et  demum  defensoris  huiusmodi  persona,  tanquam  pars  necessaria 
ad  iudicii  validitatem  et  integritatem  censeatur,  semperque  adsit  in  iudicio  sive 
unus  ex  coniugibus,  qui  pro  nullitate  matrimonii  agit,  sive  ambo,  quorum  alter 
pro  nullitate,  alter  vero  pro  validitate  in  iudicium  veniant.  Defensor  autem, 
cum  ei  munus  huiusmodi  committetur,  iuramentum  praestabit  fideliter  officium 
suum  obeundi,  et  quotiescumque  contigerit,  ut  in  iudicio  adesse  debeat  pro 
alicuius  matrimonii  validitate  tuenda,  rursus  idem  iuramentum  praebebit:  quae- 
cumque  vero,  eo  non  legitime  citato  aut  intimato,  in  iudicio  peracta  fuerint, 
nulla,  irrita,  cassa  declaramus,  ac  pro  nullis,  cassis  ac  irritis  haberi  volumus, 
perinde  ac  si  citata  et  intimata  non  esset  ea  pars,  cuius  citari  intererat,  et  quam 
iuxta  legum  et  canonum  praescripla  ad  legitimam  iudicii  validitatem  citari  aut 
intimari  omnino  necessarium  erat. 

1597.  §  8.  Cum  igitur  coram  Ordinario,  ad  quern  causas  huiusmodi  cognoscere 
pertinet,  controversia  aliqua  proponetur,  in  qua  de  matrimonii  validitate  dubi- 
tabitur,  et  existentibus  in  iudicio  vel  uno  ex  coniugibus,  qui  pro  nullitate  matri- 
monii, vel  ambobus,  quorum  alter  pro  validitate,  alter  vero  pro  nullitate  actionem 
intendat,  defensor  matrimonii  partes  omnes  officii  sui  diligenter  adimpleat.  Ita- 
que  si  a  ludice  pro  matrimonii  validitate  iudicabitur,  et  nullus  sit  qui  appeJlet, 
ipse  etiam  ab  appellatione  se  abstineat:  idque  etiam  servetur  si  a  ludice  secun- 
dae  instantiae  pro  validitate  matrimonii  fuerit  iudicatum,  postquam  ludex  primae 
instantiae  de  illius  nullitate  sententiam  pronunciaverat;  sin  autem  contra  matri- 
monii validitatem  sententia  feratur,  defensor  inter  legitima  tempora  appellabit 
adhaereqs  parti,  quae  pro  validitate  agebat;  cum  autem  in  iudicio   nemo  unus 


Appendix.  433 

sit,  qui  pro  matrimonii  validitate  negotium  insistat,  vel  si  adsit,  lata  contra  eum 
sententia,  iudicium  deseruerit,  ipse  ex  officio  ad  superiorem  ludicem  provocabit. 

1598.  §  g.  Appellatione  a  prima  sententia  pendente,  vel  etiam  nulla  obmali- 
tiam  vel  oscitantiara  vel  collusionem  defensoris  et  partium  interposita  si  ambo 
vel  unus  ex  coniugibus  novas  nuptias  celebrare  ausus  fuerit,  volumus  ac  decer- 
nimus,  ut  non  solum  serventur  quae  adversus  eos,  qui  matrimonium  contra  in- 
terdictum  Ecclesiae  contrahunt,  statuta  sunt,  praesertim  ut  invicem  a  cohabita- 
tione  separentur,  quoadusque  altera  sententia  super  nullitate  emanaverit,  a  qua 
intra  decent  dies  non  sit  appellatum,  vel  appellatio  interposita  deserta  deinde 
fuerit;  sed  ulterius  ut  contrahens  vel  contrahentes  matrimonium  huiusmodi  omni- 
bus poenis  contra  poligamos  a  sacris  Canonibus  et  Constitutionibus  apostolicis 
conslitutis  omnino  subiaceant,  quas  in  eos,  quatenus  opus  sit,  motu,  scientia  ac 
potestate  simili  rursus  statuimus,  decernimus  ac  renovamus. 

1599.  §  10.  Posteaquam  vero  appellationis  beneficio  ad  alterum  ludicem 
causa  in  secunda  instantia  delata  fuerit,  omnia  et  singula  quaecumque  coram 
ludice  in  prima  instantia  servanda  praefinita  fuerunt,  etiam  coram  altero  in  se- 
cunda exacte  ac  diligenter  custodientur,  citato  in  quolibet  iudicii  actu  defensore 
matrimonii,  qui  voce  et  scripto  matrimonii  validitatem  strenue  ac  pro  viribus 
tuebilur,  et  si  ludex  in  secunda  instantia  fuerit  Metropolitanus,  aut  Sedis  apos- 
tolicae  Nuncius,  aut  Episcopus  vicinior,  matrimonii  defensor  sit  qui  ab  ipsis  fue- 
rit deputatus,  quemadmodum  ipsis  deputare  mandamus,  ut  quae  a  Nobis  supe- 
rius  constituta  sunt,  peragere  possit;  si  autem  ludex  in  secunda  instantia  erit 
ludex  commissarius,  cui  a  Sede  apostolica  causae  cognitio  demandata  sit,  et  qui 
tribunal  et  iurisdictionem  ordinariam  non  habeat,  et  propterea  careat  defensore 
matrimonii,  volumus,  ut  illo  defensore  matrimonii  utatur,  qui  constitutus  fuerit 
ab  Ordinario,  in  cuius  dioecesi  causam  cognoscet,  etiam  si  idem  Ordinarius  sit, 
qui  primam  sententiam  in  eadem  causa  pronunciaverit. 

1600.  §  II.  Instructo  autem  in  hunc  modum  iudicio,  si  secunda  sententia 
alter!  conformis  fuerit,  hoc  est,  si  in  secunda  aeque  ac  in  prima  nullum  ac  irri- 
tum  matrimonium  iudicatum  fuerit,  et  ab  ea  pars  vel  defensor  pro  sua  conscien- 
tia  non  crediderit  appellandum  vel  appellationem  interpositam  prosequendam 
minime  censuerit,  in  potestate  et  arbitrio  coniugum  sit  novas  nuptias  contrahere, 
dummodo  alicui  eorum  ob  aliquod  impedimentum  vel  legitimam  causam  id  veti- 
tum  non  sit.  Potestas  tamea  post  alteram  sententiam  conformem,  ut  su'pra, 
coniugibus  facta  intelligatur  et  locum  habeat,  salvo  semper  et  firmo  remanente 
iure  seu  privilegio  causarum  matrimonialium,  quae  ob  cuiuscumque  temporis 
lapsum  nunquam  transeunt  in  rem  iudicatam;  sed  si  nova  res,  quae  non  deducta 
vel  ignorata  fuerit,  detegatur,  resumi  possunt,  et  rursus  in  iudicialem  contro- 
versiam  revocari.  Quod  si  a  secunda  sententia  super  nullitate  vel  altera  pars 
appellaverit,  vel  huiusmodi  sit,  ut  ei  salva  conscientia,  defensor  matrimonii  ac- 
quiescendum  non  putet,  vel  quia  sibi  videtur  manifeste  iniusta  vel  invalida,  vel 
quia  fuerit  lata  in  tertia  instantia,  et  sit  revocatoria  alterius  praecedenlis  super 
validitate  in  secunda  instantia  emanatae,  volumus,  ut  firma  remanente  utrique 
coniugi  prohibitione  ad  alias  transeundi  nuptias,  quas  si  contrahere  ausi  fuerint, 
poenis,  ut  praefertur,  'a  Nobis  constitutis  subesse  decernimus,  causa  in  tertia 
vel  quarta  instantia  cognoscatur,  servatis  diligenter  omnibus,  quae  a  Nobis  in 
prima  et  secunda  instantia  demandata  fuerunt,  nempe  in  quolibet  iudiciali  actu 


434  Appendix. 


citato  et  audito  defensore  matrimonii,  qui  a  ludice  teniae  instantiae  deputatus 
fuerit. 

1601.  §  12.  Defensor  autem  matrimonii,  quern  ad  munus  suum  gratis  obe- 
undum  pro  amore  Dei,  et  proximi  utilitate,  et  Ecclesiae  reverentia  in  Domino 
exhortamur,  si  operam  suam  sine  mercede  aut  salario  aliqua  ex  causa  exhibere 
recusaverit,  ab  ipsius  causae  ludice  ei  constituatur,  et  ab  ea  parte,  quae  pro  va- 
liditate  matrimonii  agit,  si  ipsi  facultas  sit,  solvatur,  sin  minus  a  ludice  primae 
vel  secunda  vel  tertiae  instantiae  respective  subministrabitur,  qui  pecunias  ex 
mulctis  suorum  tribunalium  redactas  vel  redigendas,  et  in  opera  pia  erogandas, 
in  huiusmodi  sumptus  insumere  poterunt.  Cum  vero  iudices  causae  erunt 
ludices  commissarii,  qui  neque  forum  habent,  et  consequenter  neque  pecuniam 
ex  mulctis  collectam,  volumus  ac  mandamus,  ut  defensori  matrimonii  satisfiat 
ex  pecunia  mulctarum  illius  Episcopi,  in  cuius  dioecesi  ludex  commissarius 
iuxta  Sedis  apostolicae  mandatum  indicium  exercebit. 

1602.  §  13.  Hactenus  quidem  quoad  causas  matrimoniales,  quae  extra  ro- 
manam  Curiam  pertractantur.  Quoad  causas  vero,  quae  Romae  disceptandae 
sunt,  cum  earum  cognitio  in  prima  instantia  ad  S.  R.  E.  Cardinalem  in  praefata 
Urbe,  eiusque  Suburbiis  et  districtu  Vicarium  nostrum  in  spiritualibus  pro  tem- 
pore spectet,  mandamus  ac  iubemus,  ut  omnia  et  singula,  quae  in  aliis  causis 
extra  romanam  Curiam  pertractandis  praescripta  fuerunt,  nempe  ut  indicium 
peragatur  citato  et  audito  defensore  matrimonii  ab  eodem  Cardinal!  Vicario 
deputato,  aliaque  ut  supra  omnino  serventur,  tum  etiam  in  aliis  causis,  quae  in 
prima  instantia  ex  consensu  partium,  vel  in  secunda  per  appellationem  ad  Se- 
dem  apostolicam,  omisso  medio,  interpositam,  vel  in  tertia  Romam  deferuntur, 
quas  omnes  iudicari  volumus  vel  in  Congregatione  S.  R.  E.  Cardinalium  super 
interpretatione  et  executione  Concilii  tridentini,  vel  in  causarum  Palatii  nostri 
Auditorio,  dummodo  Nobis  et  romano  Pontifici  pro  tempore  iustis  ex  causis  non 
videatur  particularis  Congregatio  S.  R.  E.  Cardinalium,  vel  romanae  Curiae 
Praelatorum  deputanda.  Cum  autem  causa  super  matrimonii  nullitate  agitabi- 
tur  in  dicta  Congregatione  S.  R.  E.  Cardinalium  Concilii  tridentini  interpretum, 
defensor  matrimonii  a  Cardinal!  Praefecto  eiusdem  Congregationis,  si  vero  in 
Palatii  nostri  Auditorio,  ab  Auditore  decano  praefati  tribunalis,  si  demum  in 
Congregatione  particulari,  a  persona  eiusdem  Congregationis  digniore  depu- 
tetur. 

1603.  §  14.  Unica  quidem  resolutio  pro  nullitate  matrimonii  einanata,  si 
causa  in  Congregatione  Cardinalium  Concilii  tridentini  interpretum,  vel  in  Con- 
gregatione particulari  deputata  cognoscatur,  et  similiter  in  Palatii  nostri  Audi- 
torio, unica  sententia  super  eadem  nullitate  pronunciata  minime  sufficiat  ad  tri- 
buendam  liberam  coniugibus  facultatem  novas  nuptias  contrahendi,  sed  si  causa 
in  praefata  Congregatione  Cardinalium  tridentini  Concilii  interpretum  intro- 
ducta  fuerit,  rursus  in  eadem  ad  defensoris  matrimonii  instantiam  reproponatur; 
si  vero  Congregationi  particulari  commissa  fuerit,  ad  petitionem  eiusdem  defen- 
soris altera  etiam  particularis  Congregatio  deputabitur;  si  vero  in  Palatii  nostri, 
Auditorio  iudicata  sit,  a  praefato  defensore  appellatione  interposita,  ab  aliis 
Auditoribus  iuxta  ordinem  in  gyrum  seu  turnum  definiatur;  si  autem  causa  uni- 
verso  tribunali  commissa  fuerit,  ob  omnibus  Auditoribus  rursus  examinabitur 
nolentes  omnino,  ut  nullo  in  casu  matrimonii  vinculum  dissolutura  censeatur. 


Appendix.  435 

nisi  duo  iudicata  vel  resolutiones  aut  sententiae  penitus  similes  et  conformes,  a 
quibus  neque  pars,  neque  defensor  matrimonii  crediderit  appellandum,  emanav- 
erint;  quod  si  secus  factum  fuerit,  et  novum  initura  matrimonium,  nostrae  vol- 
untatis huiusmodi  transgressores  poenis  a  Nobis  ut  supra  statutis  submittantur. 

1604.  §  15.  Et  quoniam  saepe  apud  Sedem  apostolicam  preces  porrigi  solent 
pro  dispensatione  matrimonii  rati  et  nonconsummati,  quaeut  plurimum  pro  voto 
consultivo  ad  Congregationem  S.  R.  E.  Cardinalium  Concilii  interpretum,  vel 
nonnunquam  ad  aliquam  Congregationem  particularem  deputatam  a  romanis 
Pontificibus  pro  tempore  remitti  solent,  ut  huiusmodi  instantiae  ordine  ac  rite 
procedant,  volumus  ac  mandamus,  ut  supplex  libellus  Nobis  vel  romano  Pontifici 
pro  tempore  exhibeatur,  in  quo  plena  et  accurata  totius  facti  species  contineatur, 
causaeque  omnes  in  eo  exprimantur,  quae  ad  obtinendam  petitam  dispensationem 
conducere  posse  a  supplicante  censentur,  ut  romanus  Pontifex,  eo  lecto  et  ma- 
ture considerate,  secum  deliberare  possit,  an  petitionem  reiiciat,  vel  eius  examen 
alicui  ex  dictis  Congregationibus  committat,  a  qua  posteaquam  suum  votum  con- 
sultivum  editum  fuerit,  a  Secretario  eiusdem  Congregationis  totius  negotii  series 
exacte  romano  Pontifici  pro  tempore  referatur,  qui  pro  sua  prudentia  iudicabit, 
an  Congregationis  resolutio  sit  approbanda,  vel  potius  totius  causae  examen 
alteri  Congregationi  vel  tribunali,  prout  eidem  Pontifici  videbitur,  rursus  com- 
mittendum. 

1605.  §  16.  Demum  volumus  ac  decernimus,  easdem  praesentes  literas  sem- 
per firmas,  validas  et  efficaces  existere  et  fore,  suosque  plenarios  et  integros 
eflectus  sortiri  et  obtinere,  ac  ab  illis,  ad  quos  spectat,  et  pro  tempore  quando- 
cumque  spectabit,  in  omnibus  et  per  omnia  plenissime  et  inviolabiliter  observari. 
Sicque  et  non  aliter  per  quoscumque  Indices  ordinarios  et  delegates,  etiam  cau- 
sarum  Palatii  apostolici  Auditores,  ac  eosdem  S.  R.  E.  Cardinales,  etiam  de 
latere  legatos,  et  s.  Sedis  Nuntios,  aliosve  quoslibet  quacumque  praeeminentia 
et  potestate  fungentes  et  functuros,  sublata  eis  et  eorum  cuilibet  quavis  aliter 
iudicandi  et  interpretandi  facultate  et  auctoritate,  ubique  iudicari  et  definiri 
debere,  ac  irritinn  et  inane,  si  secus  super  his  a  quoquam  quavis  auctoritate  sci- 
enter vel  ignoranter  contigerit  attentari.  Non  obstantibus  praemissis  ac  con- 
stitutionibus  et  ordinationibus  apostolicis,  nee  non  quibusvis  etiam  iuramento, 
confirmatione  apostolica  vel  quavis  firmitate  alia  roboratis,  statutis  et  consue- 
tudinibus,  privilegiis  quoque,  indultis  et  Uteris  apostolicis  sub  quibuscumque 
tenoribus  verborum  et  formis,  ac  cum  quibusvis  etiam  derogatoriarum  deroga- 
toriis,  aliisque  efiicacioribus  et  insolitjs  clausulis  irritantibusque  et  aliis  decretis 
etiam  motu,  scientia  et  potestatis  plenitudine  paribus  in  genere  vel  in  specie, 
sen  alias  quomodolibet  concessis,  confirmatis  et  innovatis.  Quibus  omnibus  et 
singulis  etiam  si  pro  illorum  sufBcienti  derogatione  de  illis  eorumque  totis  teno- 
ribus specialis,  specifica,  expressa  et  individua,  ac  de  verbo  ad  verbum,  non  au- 
tem  per  clausulas  generales  idem  importantes,  mentio,  seuquaevis  alia  expressio 
habenda,  aut  aliqua  alia  exquisita  forma  in  illis  tradita  observata  eisdem  prae- 
sentibus  pro  expressis  et  insertis  habentes,  illis  alias  in  suo  robore  permansuris, 
ad  praemissorum  effectum  hac  vice  dumtaxat  expresse  derogamus,  caeterisque 
contrariis  quibuscumque. 

1606.  §  17.  Volumus  autem,  ut  praesentes  literae  in  valvis  Ecclesiae  latera- 
nensis  et  Principis  Apostolorum,  nee  non  Cancellariae  apostolicae  ac  in  acie 


43  6  Appendix. 

Campi  Florae  de  Urbe,  ut  moris  est,  publicentur  et  affigantur,  sicque  publicatae 
et  affixae,  omnes  et  singulos,  quos  illae  concernunt,  perinde  arctent  et  afficiant, 
ac  si  unicuique  eorum  nominatim  et  personaliter  intimatae  fuissent;  quodque 
earumdem  praesentium  transumptis  seu  exemplis,  etiam  impressis,  manu  alicu- 
ius  Notarii  public!  subscriptis,  et  sigillo  alicuius  personae  in  dignitate  ecclesias- 
tica  constitutae  munitis,  eadem  prorsus  fides  tarn  in  iudicio,  quam  extra  illud 
ubique  adhibeatur,  quae  ipsis  praesentibus  adhiberetur,  si  forent  exhibitae  vel 
oslensae. 

1607.  §  18.  Nulli  ergo  omnino  hominum'liceat  banc  paginam  nostri  decreti, 
statuti,  constitutionis,  prohibitionis,  revocationis,  annullaiionis,  declarationis, 
mandati  ac  voluntatis  infringere,  vel  ei  ausu  temerario  contraire.  Siquis  autem 
hoc  attentare  praesumpserit,  indignationem  omnipotentis  Dei  ac  bb.  Petri  et 
Pauli  apostolorum  eius  se  noverit  incursurum.  Datum  Romae  apud  s.  Mariam 
maiorem  tertio  nonas  novembris  anno  Incarnationis  dominicae  millesimo  sep- 
tingentesimo  quadragesimo  primo,  Ponlificatus  nostri  anno  secundo. 

D.  CARD.  PASSIONEUS. 

Visa  de  Curia 

N.  Antonellus 

X.  Sub-Datarius. 
Loco  »J<  Plumbi. 

,  I.  B.  Eugenius. 

Anno  a  Nativitate  D.  N.  lESU  CHRISTI  MDCCXLI.  Indictione  quarta, 
die  vero  29  novembris,  Pontificatus  autem  SSihi  in  Christo  Patris  et  D.  N.  D. 
BENEDICT  I  divinaproz'identia  PP.  XIV  anno  secundo,  supradicta  Constitutio 
affixa  et publicata  fuit  ad  valvas  Basilicae  lateranensis  et  Principis  Apostohrum, 
nee  nan  Cancellariae  apostolicae.  Curiae  generalis  in  Monte  Citatorio,  in  Acie 
Campi  Florae,  ac  in  aliis  locis  solitis  et  consuetis   Urbis  per  me  loannem   Trifelli 

apost.  Curs. 

Nicolaus  Cappelli  Mag.  Curs. 


V. 

Instructio  edita  a  s.  Congregatione  Concilli  die  22  augusti  1840  pro  coftfectione  pro' 
cessus  in  causis  matrimonialibus.^ 

160S.  Cum  moneat  Glossa  {in  cap.  Jin.  de  frig,  et  malef.)  in  causis  matrimo- 
nialibus  omnem  cautelam  esse  adhibendam  propter  periculum  animarum,  quodet 
docuit  Sanchez  {de  tnatrim.  lib.  7.  disp.  107)  et  Card.  Argenvilliers  (««  dissert, 
viatrimonii  rclat.  inter  vota  Constantini  P.  5.  vol.  ult.  n.  16)  plura  hinc  a  sacris 
Canonibus  sancita  sunt,  ut  tutum  ac  rectum  iudicium  efformari  queat.  Ad  re- 
movendas  vero  fraudes,  quae  coniugum  malitia  vel  collusione  saepe  oriebantur, 
s.  m.  Bened.  XIV  (in  Constit.  Dei  miserationc)  processum  conficiendum  esse 
praecepit  sub  poena  nullitatis  omnium  actorum,  ut  probationibus  undequaque 

'  This  Instruction,  as  its  heading  indicates,  lays  down  in  detail  the  formalities  of  trials  in 
matrimonial  causes  of  nullity,  and  is  of  the  greatest  practical  importance  also  in  this  country. 
Cf.  supra,  n.  1451,  sq. 


Appendix.  437 


accuratissime  cumulatis  in  causis  huiusmodi  omnium  gravissimis,  in  quibus  agi- 
tur  de  sacrament!  validitate  vel  nullitate,  ac  dedissolvendo  vinculo  matrimoniali, 
indices  in  proferendo  iudicio  tuti  conquiescere  possent.  At  quia  saepe  in  hoc 
difficillimo  processu  acta  minus  recte  et  apte  ad  veritatem  eruendam  conficieban- 
tur,  s.  Congregatio  saepius  instructiones  edidit,  ac  normam  praescripsit  quam 
Episcopi  sequerentur. 

i6og.  Cum  itaque  in  huiusmodi  causis  non  de  iure  alterutrius  partis  tantum, 
sed  praecipue  de  sacramentali  vinculo  dissolvendo  agatur,  processus  acta  non 
ad  instar  aliorum  iudiciorum,  praesertim  civilium,  sed  iuxta  ss.  Canones,  citatam 
s.  m.  Bened.  XIV  Constitutionem,  et  praesentem  instructtonem  erunt  effor- 
manda.  Ea  itaque  non  vernaculo  sed  latino  sermone  erunt  conscribenda,  ex- 
ceptis  tamen  excipiendis,  nimirum  articulis,  interrogatoriis,  responsionibus  ad 
ea,  et  peritorum  relationibus;  praesertim  vero  decreta  et  sententia,  quae  iuxta 
priscos  mores  erit  conficienda,  latina  lingua  exarabuntur.  Praeterea  cum  a  sacro 
Cone.  trid.  (scss.  24.  cap.  20.  de  ref.  §  adhaec),  ac  etiam  as.  m.  Bened.  XIV  (in  cit. 
Constit.  Dei  miseraiione  §  4.)  causarum  matrimonialium  cognitio  quibusvis  iudici- 
bus  inferioribus,  non  obstante  quovis  privilegio  ac  praescripiione,  fueritsublata, 
ac  Episcoporum  tantum  examini  et  iurisdictioni  reservata  etiam  prae  Abbatibus 
vere  Nullius,  licet  cardinalitia  dlgnitate  fulgentibus  iuxta  s.  Congregationis 
resolutiones,  hinc  tutius  erit,  ut  nedum  sententia  proferatur,  sed  etiam  acta 
processus  per  Episcopum  vel  per  ecclesiasticam  personam  specialiter  ab  eo  dele- 
gandam  conficiantur. 

1610.  Hisce  praemissis,  quoties  aliquis  ex  coniugibus  instantiam*  in  scriptis 
porriget  super  nullitate  matrimonii,  Episcopus  ludicem,  si  velit,  delegabit,  dein- 
de  ipse  vel  iudex  delegatus  cilari  mandabit  Defensorem  matrimonii,  quatenus 
in  Curia  episcopal!  iam  deputatus  existat,  sin  minus,  idoneum  virum  deputabit 
lis  qualitatibus  praestantem,  quas  superius  memorata  Constitut.  s.  m.  Benedict! 
XIV  requirit,  eumque  citari  mandabit.  Defensoris  matrimonii  erit  praefixa  die 
accedere  ad  praestandum  iuramentum,  se  munus  suum  diligenter  et  incorrupte 
expleturum,  et  omnia  voce  ac  scriptis  deducturum,  quae  ad  validitatem  matrimo- 
nii sustinendam  conferre  poterunt.  Praeterea  hie  Defensor  matrimonii  citandus 
erit  ad  quaelibet  acta,  ne  vitio  nullitatis  ipsa  tabescaiit}  Ipsi,  qui  pro  sacra- 
menti  validitate  stat,  semper  et  quandocumque  acta  processus,  etsi  nondum 
publicati,  erunt  communicanda,  semper  et  quandocumque  eius  scripta  erunt  re- 
cipienda,  ac  novi  termini  eo  flagitante  erunt  prorogandi,  ut  ea  perficiat  et  exhibeat. 

161 1.  Praefinita  die  in  citatione  comparebit  instans  pro  nullitate,  et  tunc 
Defensor  matrimonii  tradet  interrogatoria  clausa  et  obsignata  Cancellario  seu 
Notario,  aperienda,  illo  postulante,  ex  ludicis  decreto  in  actu  examinis,  super 
quibus  interrogandus  erit  coniux  instans  pro  nullitate.  lis  ea  addet  etiam  in  actu 
examinis  ex  officio  Index,  quae  ex  responsionibus  magis  apta  conspiciet  ad  veri- 
tatem eruendam  sive  in  declarationem  responsionum  datarum,  sive  super  novis 
circumstantiis  resultantibus,  quod  erit  intelligendum  etiam  de  aliis  interroga- 
toriis, super  quibus  ceteri  omnes  de  re  instruct!  erunt  examinandi. 

1612.  Cum  itaque  advenerit  statuta  dies  pars  nullitatem  matrimonii  allegans 
comparebit  ut  supra  dictum,  coram  ludice,  adstante  Defensore  matrimonii   et 

»  Ex  cit.  Const.  §  7. 


43  8  Appendix. 


Cancellario.  ludex  deferet  parti  examinandae  iuramentum  de  veritate  dicenda, 
et  deinde  reserabit  interrogaioria  exhibita,  ut  supra  dictum  est,  a  Defensore 
matrimonii,  eaque  singulatim  proponet,  audiet  responsiones,  easque  dictabit 
Cancellario. 

1613.  Interim  dum  pars  erit  examinanda  ipse  Cancellarius  exscribet  in  pro- 
cessu  primam  interrogationem,  et  deinceps  singulas  ex  ordine,  post  quas  scribet 
responsiones  a  ludice  dictandas.  Si  quod  interrogatorium,  ut  superius  monitum 
est,  addatur  ex  officio  a  ludice  vel  a  Defensore  matrimonii,  Cancellarius  inter- 
rumpet  ordinera  progressivura,  et  adnotabit  interrogata  ex  officio;  et  scripta  in- 
terrogatione  et  responsione,  reassumet  ordinem  progressivum  interrogationum 
exhibitarum  a  Defensore  matrimonii. 

1614.  Si  examen  una  sessione  absolvi  non  poterit,  Index  illud  suspendet,  ac 
destinabit  etiam  diem  et  horam  pro  reassumptione  et  prosecutione  iisdem  modo 
ac  forma  facienda,  ut  supra  dictum  est.  Absolute  examine  Cancellarius  leget 
clara  et  intelligibili  voce  responsiones  datas,  facta  examinato  facultate  vartandi 
et  declarandi  datas  responsiones,  prout  ei  libuerit.  Tandem  ludex  deferat  iura- 
mentum eidem  coniugi,  se  vera  dixisse,  atque  nunquam  ante  publicationem  pro- 
cessus se  evulgaturum  sive  interrogationes  propositas,  sive  responsiones  datas. 
Deinde  ipse  subscribet,  et  si  fuerit  illiteratus  per  signum  Crufcis;  dein  Index  et 
Defensor  validitatis  matrimonii  apponet  suam  subscriptionem,  et  Cancellarius 
de  actu  rogabit. 

1615.  Poterit  pars  examini  subiecta  vel  illico  post  examen,  vel  etiam  dein- 
ceps antequam  publicetur  processus,  si  velit,  articulos  proponere,  super  quibus 
etiam,  citato  Defensore  matrimonii,  erit  examinandus  alter  coniux,  et  quatenus 
etiam  ab  h'oc  articuli  proponantur,  erit  iterum  citandus  coniux,  qui  primus  fuerat 
interrogatus,  et  adstante  Defensore  matrimonii,  super  articulis  ab  altero  pro- 
positis  audietur. 

1616.  Haec  norma  quae  data  fuit  pro  instantis  examine  servanda  erit,  con- 
grua  congruis  referendo,  in  quovis  alio  examine. 

1617.  Expleto  examine  illius  coniugis  qui  actor  fuit  in  promovenda  nullitatis 
querela,  sequitur  examen  alterius  coniugis,  quod  erit  conficiendum  iisdem  pror- 
Sus  methodo  ac  lege,  quae  praescriptae  fuerunt  in  praecedentibus  paragraphis, 
ac  sub  iisdem  interrogatoriis  actori  propositis,  vel  aliis  additis,  vel  novis  confec- 
tis  prout  Defensor  matrimonii  in  Domino  censuerit. 

1618.  Deinde  procedendum  erit  ad  examen  septimae  manus,  hoc  est  septem 
propinquorum  ex  utroque  latere  ad  formam  text,  (in  cap.  litteraevestrae,  de  frig, 
et  male/.).  Ut  id  facilius  exequi  Index  valeat,  Defensor  matrimonii  citabit  par- 
tem actricem,  ut  indicet  septem  sibi  sanguine  vel  affinitate  coniunctos,  si  fieri 
possit,  sin  minus  septem  vicinos  bonae  famae.  Singuli,  audita  prius  lectura 
examinis,  seu  confessionis  coniugis  cos  inducentis,  erunt  interrogandi,  utrum 
perspectam  habeant  religionem  et  honestatem  illius  coniugis,  ut  propterea  sibi 
verosimile  sit,  ac  credant  eum  vera  dixisse.  Similiter  instante  Defensore  matri- 
monii citandus  erit  alter  coniux,  ut  etiam  ipse  indicet  septem  propinquos  vel 
affines,  iisque  deficientibus,  septem  vicinos  bonae  famae,  qui  ut  supra  dictum  est 
deponant;  seorsim  erunt  hi  quatuordecim  conflantes  septimam  manum  examini 
subiiciendi,  designatis  diebus  et  horis,  delato  prius  iuramento  singulis.  Defensor 
matrimonii  interrogatoria  clausa  exhibebit,  ut  superius  dictum  est. 


Appendix.  439 

1619.  Liberum  erit  coniugibus  testes  bonae  famae  ac  de  re  instructos  inducere, 
qui  omnes  seorsim  at  methodo  hactenus  praescripta  erunt  examini  subiiciendi. 

1620.  Si  alios  etiam  Defensor  matrimonii  ex  actis  iam  confectis  deprehendet 
de  re  instructos,  hos  etiam  citabit,  ut  examini  subiiciantur.  Si  qui  forsan  absen- 
tes  noscantur,  qui  commode  ad  civitatem  accedere  nequeant  etiam  ob  distantiae 
sumptus,  vel  ad  partis  instantiam,  vel,  ea  silente,  ad  instantiam  Defensoris 
matrimonii  erunt  ab  Episcopo  illius  dioecesis,  in  qua  morantur,  examinandi 
iuxta  interrogatoria  ab  eodem  Defensore  conficienda,  ac  clausa  et  obsignata 
transmittenda,  deputato  ab  eodem  Episcopo  altero  idoneo  viro,  qui  praestet 
requisitis  in  Bulla  saepius  laudata  s.  m.  Bened.  XIV  praescriptis,  quique  expleat 
munus  Defensoris  validitatis  matrimonii,  et  examini  adsit. 

1621.  Omnes  vero  testes,  congrua  congruis  referendo,  rogandi  erunt,  prae- 
sertim  quando  initum  fuerit  matrimonium:  utrum  inter  coniuges  mutui  amoris 
et  benevolentiae  signa  intercesserint;  quamdiu  in  eadem  domo  vel  civitate 
cohabitaverint;  utrum  innotuerit,  eos  consum.mationi  operam  dedisse;  an  inde 
matrimonium  consummatum  censeretur;  de  causisconsummaiionem  impeditivis; 
de  conquestionibus,  quando  et  cum  quibus  factis,  et  cur  nolint  amplius  in  matri- 
monio  permanere. 

1622.  Si  querela  super  impotentia  versetur,  interrogandi  erunt  Periti  physici, 
quos  coniuges  consuluerunt. 

1623.  Praeterea  quatenus  querela  super  nullitate  ex  iis  sit,  ut  solvi  possit 
matrimonium,  si  coniuges  illud  non  consummarunt,  tunc  procedendum  erit  ad 
inspectionem  corporis  coniugum  seorsim  sequenti  methodo  perficiendam,  in- 
stante  praesertim  Defensore  matrimonii. 

1624.  ludex  praefiget  terminum  tam  utrique  coniugi,  quam  Defensori  matri- 
monii ad  exhibendas  notulas  Peritorum  Medicorum  et  Chirurgorum  confidentium 
et  diffidentium  pro  utriusque  coniugis  inspectione,  congrua  congruis  referendo. 

1625.  Exhibitis  notulis  a  partibus,  ludex  eliget  quinque  Peritos,  tres  scilicet 
Medicos  et  duos  Chirurgos  ex  his,  in  quibus  partes  consentiant,  sin  minus  ex 
officio  eos,  qui  tamen  partibus  non  sint  rationabiliter  suspecii,  deputabit;  atque 
curabit,  ut  deputatio  cadat  super  celebrioribus  civitatis  tum  quoad  scientiam  turn 
quoad  religionem  et  honestatem,  atque  his  Peritis  facultatem  dabit  recognos- 
cendi  corpus  viri,  adhibitis  honestis  mediis  ad  explorandam  ipsius  potentiam,  nee 
non  facultatem,  quatenus  non  conveniant  in  prima  inspectione,  iterum  accedendi. 
Atque  in  eodem  decreto  diem,  horam  et  locum  destinabit,  in  quibus  Periti  acce- 
dent,  ut  inspectionem  perficiant. 

1626.  Designata  die  et  hora,  ad  locum  accedent  ludex,  Defensor  matrimonii, 
Cancellarius  ac  Periti.  Singuli  ex  Peritis  ac  seorsim  corpus  viri  inspicient  ea 
qua  fieri  poterit  decentia,  et  factis  experimentis,  quae  iuxta  artem,  non  tamen 
illicitis,  opportuna  iudicabunt,  singuli  scriptam  emiitent  relationem. 

1627.  In  inspectione  et  relatione  haec  praecipue  investiganda  et  referenda 
erunt. 

1628.  An  adsint  signa  physice  certa  impotentiae  deducta  ex  conformatione 
partium,  aut  ex  aliquo  vitio  quod  apparere  poterit.  An  adsint  signa,  quae  mor- 
alem  certitudinem  inducant  impotentiae,  et  quatenus  existant,  quae  sit  huius 
impotentiae  causa,  utrum  sit  impotentia  perpetua  insanabilis  ac  praecedens  ma- 
trimonium, an  signa  impotentiae  sint  dubia  vel  aequivoca. 


440  Appendix. 

1629.  Peracta  relatione  a  singulis  seorsim,  Defensor  matrimonii  exhibebit 
interrogatoria  clausa,  sigillata,  super  quibus  fieri  debet  examen  Peritorum,  sibi- 
que  reservabit  ius  addendi  alia  interrogatoria,  ac  iterum  eaad  examen  revocandi. 
Si  examen  singulorum  Peritorum  eadem  die  perfici  nequiverit,  iudex  aliam  diem 
designabit,  ut  illud  prosequatur.  Uterque  ex  Peritis  tum  ante  examen  iuramen- 
tum  praestabit  de  veritate  dicenda,  tum  post  examen  iuramento  dicta  confirma- 
bit,  sese  propria  manu  subscribens,  Iudex,  Defensor  validitatis  matrimonii  et 
Cancellarius  se  subscribent,  qui  actum  rogabit. 

1630.  Procedendum  etiam  erit  ad  inspectionem  corporis  mulieris.  Iudex, 
ut  supra  dictum  est  de  Peritis,  tres  saltem  Obstetrices  deputabit,  quae  a  duobus 
saltem  Peritis  uno  Medico,  et  altero  Chirurgo,  ut  supra  seligendis,  sedulo  erunt 
instruendae  de  recognoscendo  visu  et  tactu  in  muliebrium  inspectione.  Statuta 
autem  huius  inspectionis  die  mulier  erit  traducenda  ad  domum  honestae  Matro- 
nae  pariter  a  ludice  deputandae  pro  infrascripta  praestanda  personali  adsistentia, 
atque  adstantibus  semper  tribus  Obstetricibus  et  Matrona,  immergenda  erit  in 
balneo  aquae  tepentis  a  Peritis  prius  recognoscendo,  quod  sit  aquae  purae,  quo 
in  balneo  per  spalium  saltem  trium  quadrantium  horae  uniuspermanere  debebit; 
quo  tempore  transacto,  adstantibus  semper  et  praesenlibus  Matrona  et  Obstetri- 
cibus, statim,  ne  uUum  spatium  aut  momentum  temporis  mulieri  detur,  quo  ad 
arctandum  vas  uUo  medicamento  aut  aliqua  fraude  uti  queat,  ad  ipsius  corporis 
inspectionem  a  singulis  seorsim  deveniendum  erit,  adstante  semper  et  praesente 
Matrona;  qua  in  re  prospiciendum  etiam,  ut  haec  recognitio  fiat  tempore  tan- 
tum  diurno  et  in  cubiculo  luminoso,  ut  ex  inspectione  huiusmodi  utrum  mulier 
virgo  sit,  an  violata  et  corrupta,  adhibitis  artis  regulis,  exactius  deprehendatur. 

1631.  Iudex,  Defensor  matrimonii  et  Cancellarius  cum  Peritis,  ut  supra  ad 
domum  Matronae  accedent.  Peracta  hinc  recognitione,  seorsim  singulae  Obste- 
trices referent  de  virginitatis  aut  corruptionis  indiciis  ab  inspectione  resultanti- 
bus,  an  certa  et  qualia  supersint  signa  et  argumenta  intemerati  aut  corrupti 
claustri  virginalis,  et  an  ulla  fraus  ad  virginitatem  simulandam  adhiberi  potuerit. 
Deinde  super  his  magis  praecise  deponent  in  responsionibus  ad  interrogatoria, 
quae  clausa  et  obsignata  exhibebit  Defensor  validitatis  matrimonii.  Deinde  for- 
mali  examini  erunt  subiiciendi  Periti,  quorum  iudicium  erit  exquirendum  super 
relatis  et  depositis  ab  Obstetricibus.  Tandem  examen  subire  debebit  quoque 
Matrona  quoad  praestitam  toto  balnei  et  recognitionis  tempore  adsistentiam, 
servatis  quoad  examen  iis  omnibus,  quae  superius  dicta  sunt,  congrua  tamen 
congruis  referendo. 

1632.  Quatenus  Defensori  matrimonii  nulla  alia  probatioexquirendavideatur, 
nuUamque  putet  aliam  Iudex  prae  sua  diligentia  assumendam,  finis  imponetur 
probationum  collectioni  et  publicabitur  processus,  edito  super  hoc  decreto  a 
ludice,  factisque  subscriptionibus  ab  eo,  a  Defensore  matrimonii  et  a  Cancel- 
lario.  Haec  habenda  methodus.  Quae  in  actis  continentur  nemini,  nee  ipsis 
quidem  coniugibus  eorumque  defensoribus  erunt  communicanda  ante  processus 
publicationem,  uno  excepto  Defensore  matrimonii,  cui  libera  semper  et  quando- 
cumque  erit  actorum  inspectio  et  examen. 

1633.  Locus  deinde  erit  defensionibus.  Liberum  etiam  erit  Defensori  matri- 
monii post  processus  publicationem  novas  probationes  exquirere,  cum  agat  fa- 
vore  sacramenti,  et  numquam  bina  sententia  nuUitatis  conformis  transeat  in  rem 


Appendix.  441 

iudicatam,  ac  reassumi  caussa  possit  etiam  post  initas  novas  nuptias  a  pnrtibus 
iuxta  Constitut.  saepius  citatam  Dei  miscrationc. 

1634.  Omnibus  absolutis,  et  cum  nil  amplius  deducendum  censuerit  Defensor 
matrimonii,  sententiam  proferet  Episcopus. 

1635.  Si  hac  matrimonii  nullitas  decreta  fuerit,  debebit  Defensor  matrimonii 
appellare  iuxta  citatam  Constitutionem,  nee  poterunt  coniuges  ad  alia  vota 
transire  nisi  post  obtentam  alteram  sententiam  conformem  super  nuUitate,  sub 
poenis  contra  polygamos  constitutis  in  citata  Constitutione  Dei  miseratione.  . 
Deinde  transmittenda  erunt  acta  ab  Episcopo  ad  ludicem,  ad  quem  provocatum 
fuit,  in  copia  authentica,  soluta  per  partem  diligentiorem  competenti  mercede 
Cancellario 


VI. 

Instructio  sttpremae  Congregationis  S.  0.  seqtienda  in  conficiendo  processu  stipef 
viri  impotentia,  et  non  secuta  matrimonii  consummatione ,  accedente  summi  Pon- 
tificis  dispensatione  ab  accurata  observantia  praescriptionum  Bullae  Benedicti 
XIV  "  Dei  miseratione"  servata  tamen  in  substantialibus. 

1636.  ludex  ad  hoc  deputatus  prae  oculis  habeat  quod  examina  quaecumque 
ilia  erunt,  fieri  debent  sub  iuramenti  fide,  et  Cancellarius  Curiae  episcopalis  vel 
altera  persona  deleganda,  interrogationes,  responsa  et  quaelibet  acta  scripto 
tradet,  facta  prius  annotatione  mensis,  diei,  anni,  loci  et  personae  iudicis  coram 
quo  conficiuntur  acta,  nee  non  cuiuslibet  testis  examinandi. 

1637.  Testes  singillatim  audiantur,  et  in  fine  examinis  se  subscribant  proprio 
nomine,  vel  cum  signo  crucis  quatenus  sint  illiterati. 

1638.  Primus  ille  coniux  audiatur  qui  Actor  est  in  causa.  Interrogationes 
Iudicis  arbitrio,  prudentiae  et  sagacitati  relinquuntur,  attamen  pro  eius  com- 
moditate  sequentes  traduntur,  quibus  alterae  addantur  prout  melius  in  Domino 
iudicaverit  ad  factorum  veritatem  magis  magisque  eruendam,  nimirum: 

1639.  A  quanto  tempore  sese  cognoverint  sponsi  ante  matrimonium;  an  pa- 
rentum  consensu,  sponte  et  mutua  voluntate  illud  inierint;  an  in  sequenti  nocte 
in  eadem  domo,  eodemque  cubiculo  et  toro  cubaverint,  officiisque  coniugalibus 
ultro  libenterque  operam  dederint;  an  matrimonium  consummaverint;  an  ipse 
examinatus  cognoscat  vel  suspicetur  causas  propter  quas  consummare  nequive- 
rint,  licet  iteratis  vicibus  etiam  in  sequentibus  noctibus  ausi  fuerint;  an  id  con- 
tigerit  ob  nimiam  angustiam  cunni  mulieris,  vel  ob  immodicam  sui  penis  crassi- 
tudinem,  aut  propter  debilitatem  ita  ut  nulla  vel  parvi  momenti  fuerit  erectio; 
an,  quae  et  quanto  tempore  adhibita  fuerint  medicamenta,  et  quinam  fuerint  ef- 
fectus;  quamdiu  simul  vixerint  et  condormierint;  quis  primus  alterum  coniugem 
deseruerit,  et  an  etiam  aliae  causae  accesserint;  an  et  quibus  parentibus,  amicis 
vel  vicinis  secreto  manifestaverint  quod  matrimonium  non  fuerit  consumma- 
tum,  eosque  singillatim  nominet. 

1640.  Haec  vel  similia  etiam  ab  altero  coniuge  requirantur,  ut  an  inter  se 
apprime  conveniant  dignoscatur. 


44  2  Appendix. 

1641.  Deinde  testes,  qui  ab  ipsis  coniugibus  fuerint  recensiti,  seorsim  exam- 
ini  subiiciantur.  Prius  vero  eorumdem  parentes  audiantur,  uti  praesumptive 
magis  informati;  postea  vero  famuli  et  viciniores.  Si  quis  illorum  obieril,  vel 
longinquas  regiones  petierit,  in  actis  innuendum  erit.  Inlerrogationes  autem 
scquentes  proponuntur,  sed  immutandae  pro  rerum  adiunctis. 

1642.  An  cognoscat  coniuges  de  quibus  sermo;  an  sciat  utrum  libenter  mutu- 
oque  affectu  sese  copulaverint,  condormierint,  et  matrimonium  consummaverint; 
an  sit  instiuctus  quibus  de  causis  consummare  nequiverint,  et  an,  et  quidadillas 
amovendas  experti  fuerint;  utrum,  et  quae  conquestio  inter  ipsosextiterit;  quae- 
nam  sit  fama  tam  apud  se,  quam  apud  alios  de  hac  praetensa  non  consumma- 
tione. 

1643.  Singulorum  testium  absolute  examine,  duo  saltern  ex  celebrioribus  civi- 
tatis  Physici  medicinam  et  chirurgiam  callentes  seligantur  corpus  viri  inspecturi 
super  eius  potentia  ad  coeundum  cum  muliere  maxime  virgine,  nee  ille  Physi- 
cus  praetereundus  qui  forsan  anteafuerit  adhibitus  ad  viri  incommoda  medenda. 
Animadvertendum  autem  ut  ?iiediis  utantur  licitis  et  honestis,  et  perscrutandum 
praecipue  utrum  illius  virilia  sint  iuxta  naturae  leges  accurate  conformata;  nimi- 
rum  an  penis  naturalem  habeat  dimensionem,  promptamque  erectionem  ad  co- 
eundum necessario  duraturam;  an  aliquo  morbo  fuerit  affectus,  a  quanto  tem- 
pore, et  cuiusnam  characteris;  an  fibrae  compactae  et  consistentes,  seu  potius 
flaccidae,  lassaeque  sint;  an  testes  sani  naturalisque  magnitudinis,  et  utrum  ali- 
quo vitio  laboraverint,  vel  adhuc  laborent;  quo  in  casu  morbi  characterem  et 
causas  investigabunt;  an  vetus  vel  recens,  naturalis  vel  acquisitus,  et  an  curabi- 
lis  nee  ne  absque  salutis  periculo. 

1644.  Quibus  omnibus  diligenter  inspectis,  singula  sub  iuramento  scripto 
tradent,  et  quid  ipsi  sentiant  de  viri  impotentia  an  acquisita  vel  ingenita,  abso- 
luta  vel  relativa  tantum,  ingenue  fateantur,  nullaque  relicta  ambigendi  ratione. 

1645.  Corpus  insuper  mulieris,  sed  maxime  illius  genitalia  membra  a  duabus 
saltern  Obstetricibus  in  arte  et  praxi  peritioribus  ac  bonis  moribus  imbutis  inspi- 
ciantur,  adhibito  prius  mulieris  balneo  si  necessario  praemittendum  Physici  et 
ipsae  iudicaverint.  Accurate  observabunt  signa  integritatem  mulieris  constitu- 
entia,  nimirum  conformationem  partium,  iuncturam,  duritiem,  rugositatem  et 
colorem;  an  hymen  sit  integer,  vel  confractus  in  totum  vel  in  parte;  hoc  in  casu 
an  et  qua  naturali  causa,  seu  potius  e  congressu  extranei  corporis  contigerit;  an 
myrtiformes  carunculae  inveniantur,  earumque  magnitudinem,  numerum,  et  con- 
formationem, aliaque  signa  ab  arte  tradita  integritatem  aut  corruptionem  muli- 
eris constituentia  sedulo  inspiciant.  Deinde  unaquaeque  seorsim  singula  quae 
repererit  sub  sacramento  ludici,  et  a  Canceilario  scripto  fideliter  tradenda,  dis- 
tincte  exponat,  et  quid  ipsae  sentiant  de  illius  integritate  declarent. 

1646.  Earumdem  depositiones  praedictis  Physicis  examinandae  tradantur,  ut 
decernant  num  mulier  adhuc  integra  habenda  sit,  atque  matrimonium  non  con- 
summatum  iudicandum. 

1647.  Verum  si  aliquod  dubium  adhuc  explicandum  supersit,  opportunis  ab 
ipsis  Physicis  concinnatis  interrogationibus,  iterum  Obstetrices  examinentur,  et 
si  nihilominus  anceps  Peritorum  iudicium  permanserit,  corpus  mulieris  ab  ipsis 
inspiciatur,  adstante  vero  Matrona  antiquae  virtutis,  nuUique  exceptioni  obnoxia, 


Appendix.  443 

et  ab  Ordinario  designanda;  expleta  inspectione  iudlcium  dabunt  Physici  singu- 
lasque  proferent  rationes  quibus  ipsorum  sententia  innititur. 

1648.  Praetereunda  tandem  non  erit  investigatio  super  qualitate  testium  au- 
dito  eorumdem  parocho,  vel  alia  proba  et  apprime  instructa  persona  utrum  ipsi 
sint  bonis  moribus  imbuti,  ac  plenam  mereantur  fidem  illorum  depositiones. 

1649.  Omnibus  superius  recensitis  diligenter  ab  Ordinario  coUectis,  ilia  ad  s. 
Congregationem  mittere  festinabit  decretorio  eius  iudicio  subiicienda. 


VII. 

Testimony  of  Singular  Witnesses  in  Causes  of  Solicitation. 
[Supra,  n.  833,  p.  88;  n.  851,  p.  98.] 

1650.  We  say  above/  that  in  criminal  causes  two  concordant  and  unexception- 
able witnesses  are  always  required  for  conviction;  that  singular  witnesses,  no 
matter  how  numerous,  do  not  constitute  full  proof  in  such  causes.^  We  here  add, 
that  when  there  is  question  of  proving  \]n^  cx\vc\&  oi  sollicitatio ,  singular  witnesses 
are  indeed  sufficient  to  prove  the  guilt,  provided,  however,  other  presumptions 
and  signs  of  guilt  corroborate  the  testimony  of  such  witnesses.  Thus  the  Con- 
gregation of  the  Holy  Office,  in  its  Instruction  of  1867,  says:  "  Sollicitationis 
crimen  ut  plurimum  secreto  perpetratur;  hinc  privilegium  est,  ut  in  causis,  quae 
contra  hoc  crimen  instituuntur,  ad  plenam  probationem  faciendara  attestationes 
etiam  singulares  admittantur.  At  in  memoratis  SS.  Pontificum  constitutionibus 
praescribitur,  ne  cum  testibus  singularibus  procedatur,  nisi  praestimptiones,  indi- 
cia et  alia  adminicula  concurrant.  Pondus  igitur  cujusque  denuntiationis  quali- 
tates  et  circumstantiae  serio  accurateque  perpendendae  sunt,  et  antequam  contra 
denuntiatum  procedatur  perspectum  exploratumque  judici  esse  debet,  quod  muli- 
eres  vel  vini  dcnuntiantes  sint  boni  nominis  neque  ad  accusandum  vel  inimicitia 
vel  alio  humano  affectu  adducantur.  Oportet  enim,  ut  testes  enim,  ut  testes 
hujusmodi  singulares  ab  omnibus  privatis  affectionibus  sint  immunes,  ut  ipsis 
integra  fides  haberi  possit."  '^ 

1651.  It  will  be  seen  from  this  quotation  that  the  testimony  of  singular  wit- 
nesses is  not  only  not  sufficient  of  itself  in  causes  of  solicitation,*  but  that, 
moreover,  the  greatest  care  should  be  taken  to  find  out  whether  they  are  above 
all  suspicion.  Hence  the  Sacred  Congregation  ordains  that  when  a  denunciation 
has  been  received,  the  ecclesiastical  superior  shall  not  proceed  forthwith  against 
the  accused,  but  shall  first  inquire  carefully  whether  the  person  who  makes  the 
denunciation  is  worthy  of  belief.  Hence  the  parish  priest  and  other  reliable 
persons  should  be  examined  in  regard  to  the  character  of  the  denouncer.  Nay, 
the  above  Instruction  says:  "  Ea  est  hujus  supremae  Inquisitionis  consuetude, 
ut  post  unam  alteramve  denuntiationem  rescribatur,  quod  dehuntiatus  observetiir, 
ita  videlicet   super  delato   crimine   suspectus  habeatur,   ut  quum  primum  per 

1  Supra,  n.  833.  ^  Supra,  n.  851. 

'  Instr.  cit.,  §  10,  apud  Konings,  vol.  i.  p.  Ixiii.  *  Cf.  Reiff.  1.  2,  t.  20,  n.  312. 


444  Appendix. 

novas  denuntiationes  res  explorata  erlt,  in  judicium  vocandus  sit.  Ut  plurimum 
nonnisi  a  tertia  denuntiatione  procedi  solet."  '  All  this  shows  plainly  enough 
with  what  diffidence  and  circumspection  the  testimony  of  singular  witnesses 
should  be  admitted  even  in  causes  of  solicitation. 


VIII. 

Is  the  administering  of  an  Oath  by  the  Ecclesiastical  Judge  or  Superior,  as  such,  to 
Witnesses  or  other  parties,  forbidden  by  the  Civil  Law  in  England,  Ireland,  and 
the  United  States  ? 

[Supra,  n.  1344,  1345,  pp.  344,  345;  n.  1426,  pp.  379,  380.] 

1652.  I.  Illegality  of  these  oaths  in  England  and  Ireland. — It  seems  certain, 
as  we  have  already  shown, ^  that  the  swearing  of  witnesses  or  other  parties  by 
the  ecclesiastical  judge  or  superior,  as  such,  is  positively  forbidden  by  law  in 
England  and  Ireland.  Here  is  the  law:  "Whereas  a  practice  has  prevailed 
of  administering  and  receiving  oaths  and  affidavits  voluntarily  taken  and  made 
in  matters  not  the  subject  of  any  juridical  inquiry,  nor  in  anywise  pending  or 
at  issue  before  the  justice  of  the  peace  or  other  person  by  whom  such  oaths  or 
affidavits  have  been  administered  or  received;  and  whereas  doubts  have  arisen 
whether  or  not  such  proceeding  is  illegal;  for  the  more  effectual  suppression  of 
such  practice  and  removing  such  doubts,  be  it  enacted,  That  from  and  after  the 
commencement  of  this  act  it  shall  not  be  lawful  for  any  justice  of  the  peace 
or  other  person  to  administer,  or  cause  or  allow  to  be  administered,  or  to 
receive  or  cause  or  allow  to  be  received,  any  oath,  affidavit,  or  solemn  affirma- 
tion touching  any  matter  or  thing  whereof  such  justice  or  other  person  hath 
not  jurisdiction  or  cognizance  by  some  statute  in  force  at  the  time  being."  ^ 

1653.  Mr.  Justice  Coleridge,  in  1843,  in  Regina  v.  Nott,  decided  that  the 
administering  of  an  oath  in  an  ecclesiastical  judicial  inquiry  was  contrary  to  the 
above  statute,  and  consequently  illegal.'*  It  should  be,  however,  observed  that 
the  statute  just  quoted  does  not  make  the  administering  of  the  oath  contrary  to 
its  provisions  a  penal  offence,  but  simply  declares  it  unlawful,  without  decree- 
ing any  penalty  for  its  violation. 

1654.  II.  The  swearing  of  witnessess  or  other  persons  in  the  ecclesiastical  courts 
of  the  United  States. — In  the  United  States  this  administering  of  the  oath  is 
not  illegal,  as  we  have  already  shown.*  At  our  request,  Mr.  E.  Stevenson,  the 
public  prosecutor  of  Passaic  Co.,  New  Jersey,  made  a  thorough  inquiry  into  the 
question.  He  informs  us  that  he  has  looked  up  all  the  available  laws  and 
authorities,  on  the  matter,  and '  that  he  cannot  find  any  prohibition  whatever 
against  administering  the  oaths  in  question;  that  it  is  the  universal  opinion  of 
lawyers  and  competent  judges  that  no  such  prohibition  exists  with  us;  that  it  is 
the  general  practice  of  Protestant  denominations,  with  us,  to  administer  oaths  in 
their  ecclesiastical  courts. 

1  Instr.  cit.,  §  11.  *  Supra,  n.  1345.  »  5  and  6  Will.  4,  c.  63,  s.  13. 

*  Regina  v.  Nott,  i  Carr  and  Marsh.  288  (41  E.  C.  L.).       *  Supra,  n.  1344, 1426, 


Appendix,  445 


IX. 

Force  of  the  Confession  or  Statement  of  the  Married  Couple,  concerning  Clandestine 
Marriages,  especially  with  us. 

[Supra,  n.  1486-1491.] 

1655.  We  say  above  (n.  i486.)  that  the  confession  of  either  of  the  married 
couple,  or  even  of  both,  as  against  the  validity  of  a  marriage  contracted  by  them,  has 
of  itself  no  force.  Here  then  it  is  proper  to  ask  :  Is  this  rule  applicable  also 
to  clandestine  marriages  contracted  in  so  secret  a  manner  as  not  to  be  suscep- 
tible of  proof?  Before  answering,  we  remark  that  we  speak  of  clandestine 
marriages  as  contracted  in  those  places  where  the  Tridentine  decree  Tametsi 
does  not  obtain.  For  where  it  is  in  force  clandestine  marriages  are  null  and 
void,  and  consequently  there  can  be  no  question  of  proving  the  validity  of  such 
marriages.  The  question  therefore  has  reference  to  clandestine  marriages  as 
contracted  in  the  greater  part  of  the  United  States,  where  the  Tridentine  decree 
is  not  promulgated.  We  observe  in  passing  that  as  these  marriages  are  valid 
if  contracted  solely  by  the  consent  of  the  couple,  without  the  assistance  of  a 
priest  or  of  witnesses,  it  must  often  become  very  diflicuit  to  prove  them. 

We  now  answer:  The  above  rule  is  not  applicable  in  the  case  of  clandestine- 
marriages  under  consideration.  Hence,  if  both  or  even  one  of  the  couple 
alleged  to  have  been  clandestinely  married  denies  the  marriage,  they  are  not 
to  be  compelled  to  cohabit  and  regard  each  other  as  married;  nay,  they  should 
be  separated,  and  their  alleged  marriage  regarded  as  no  marriage.  But  if  both 
affirm  the  existence  of  their  marriage,  their  confession  or  statement  constitutes 
full  proof  of  the  marriage,  and  such  a  marriage  must  be  accepted  and  approved 
by  the  Church,  as  though  it  had  been  contracted  from  the  beginning  in  facie 
ecclesice?  ' 

'  Cap.  I,  2,  de  Cland.  desp.  (iv.  3) ;  Schmalzg.,  1.  4,  t.  3,  n.  249. 


CONTENTS. 


BOOK   II.— ON    ECCLESIASTICAL   JUDICATURE, 

OR    OF    JUDICIAL    PROCEEDINGS,    CIVIL    AND     CRIMINAL,    IN    ECCLESI- 
ASTICAL  COURTS,    ALSO    IN    THE   UNITED    STATES. 


PART  I. 


Of  Ecclesiastical  Judicial  Proceedings,  Civil  and 

Criminal,  in  general,  7 

CHAPTER   I. 

What  is  meant  by  Judicial  Procedures  or  Trials, 
and  how  many  kinds  are  there? — What  does 
the  Law  of  Nature  require  in  all  Judicial  Pro- 
ceedings ? — What  does  the  Positive  Law  pre- 
scribe ? 7 

CHAPTER   II. 

Has  the  Church  a  Judiciary  Power  in  the  strict 
sense? — What  is  its  Extent?        ....         14 

CHAPTER   III. 

Of  the  various  Persons  who  usually  take  part  in 

Ecclesiastical  Trials,  also  in  the  United  States,         19 

Art.     I.  Of  the  Judge — Commissions  of  Investigation  in 

the  United  States,        ......         19 

Art.  II.  Of  the  Plaintiff  and  the  Defendant,  also  before 
Commissions  of  Investigation  in  the  United 
States,  .........  39 

Art.  III.  Of  Procurators  or  Agents,      .....         45 


448  Contents. 


rAPF 


Art.  IV.  Of    Advocates,  also  before  our  Commissions  of 

Investigation,        .         .         .         .  .  51 

Art.    V.  Of   Auditors,  Assessors,   Promoters,   Secretaries, 

and  Messengers  of  Ecclesiastical  Courts,   .         .         60 

CHAPTER   IV. 

Of    the   competent    Ecclesiastical    Tribunal — ZV 

J^oro  Competente  Ecdesiastico — Forum  of  Domi- 
cile, of  Contract,  of  Location  of  Object,  of 
Crime,  of  Delegation,  of  Prorogation,  of  Com- 
promise, etc.,         .......         61 

CHAPTER   V. 
Of  Judicial  Proofs,  . 77 

Art.     I.  Judicial  Proofs,  in  general — Nature,  Division,  and 

Force  of  these  Proofs,  .....         77 

Art.  II.  Judicial  proofs  in  particular — Of  Confession,  Ju- 
dicial and  Extrajudicial,  and  its  Effects,     ,         .         81 

Art.  III.  Of  Witnesses  —  Their  Qualifications,  Number, 
Mode  of  Examination — Confrontation — Oath — 
Publication  of  their  Depositions  —  Witnesses 
before  Commissions  of  Investigation  in  the 
United  States, 83 

Art.  IV.  Of  Instruments — Their  Force — Mode  of  Produc- 
tion during  the  Trial,  ......        105 

Art.  V.  Of  Presumptions — Their  Nature,  Division,  Force, 
and  Effects — Are  mere  Presumptions  sufficient 
for  Conviction  in  Criminal  Causes?  .         .         .       iii 

Art.  VI.  The  Oath  as  a  Proof 118 


PART  II. 

Of  Ecclesiastical  Judicial  Procedure,  in  particular,       123 

CHAPTER    I. 

Organization  of  the  Bishop's  Court  for  the  Exer- 
cise of  Judicial  Power,         .         .         .         .         .123 
Art.     I.  Of  the  Judge — The  Bishop  is  the  Ordinary  Judge 

in  the  first  instance, 123 


Contents.  449 

PAGE 

Art.  II,  Auditors  of  the  Bishop's  Court — Resemblance 
between  them  and  our  Commissions  of  Investi- 
gation,   125 

Art.  III.  Assessors  of  the  Bishop's  Court — Are  Commis- 
sions of  Investigation  in  the  United  States 
Assessors  of  the  Bishop's  Court  ?  In  w^hat 
sense?     Can  they  be  challenged  ?        .         .         .126 

Art.  IV.  Collegiate  Form  of  the  Bishop's  Court — The  Bish- 
op's Court  in  the  United  States,  as  established 
by  the  S.  C.  de  P.  F.,  July  20,  1878,    ...       128 

Art.    V.  Diocesan  Promoter  and  Advocate,         .         .         .        131 

Art.  VI.  Diocesan  Promoter  or  Prosecutor  in  the  United 
States,  under  the  Instruction  of  the  Propa- 
ganda of  July  20,  1878,         ......        134 

Art. VII.  Notaries  and  Chancellors — Secretaries  of  Com- 
missions of  Investigation  in  the  United  States,         135 

Art. VIII.  Judicial  Messengers  (Constables,  Sheriffs,  etc., 
of  Secular  Courts) — Citation  sent  by  Registered 

Mail  in  the  United  States,  .....       139 

\ 

CHAPTER   II. 

Of  the  Archbishop's  Court  of  Justice — Its  Organi- 
zation in  the  United  States,  according  to  the 
Instruction  of  the  S.  C.  de  P.  F.,  of  July  20, 
1878, 141 

CHAPTER   III. 

Of  the  Ordinary  (Solemn  or  Formal)  Canonical 

Trial  in  Criminal  Causes,    .....        144 

Sec.  I.    Various  Modes  of  beginning  Canonical  Criminal 

Trials,  .........       144 

Art.     I.  Mode  of  Procedure  by  way  of  Accusation — The 

PoenaTalionis — This  Procedure  now  Obsolete,     .       144 

Art.  II.  Mode  of  beginning  Criminal  Trials  by  Way  of 
Denunciation — Is  Common  Fame  a  necessary 
Condition  of  Judicial  Denunciation — Character 
of  Common  Fame — Effects  of  Judicial  Denun- 
ciation upon  the  Judge,  the  Person  denouncing, 
and  the  Person  denounced,         ....       147 


450  Contejits. 

PAGE 

Art.  III.  Trial  by  Way  of  Inquiry — General,  Special,  and 
Mixed  Inquiry — Necessity  of  previous  Common 
Fame  —  Establishment  of  the  Corpus  Delicti — 
Publicity  excluded  from    Ecclesiastical  Trials,       153 

Art.  IV.  Mode  of  Procedure  by  Way  of  Exception — De- 
fendant's Right  to  make  Exceptions — Criminal 
and  Civil  Exceptions — Trial  of  Exceptions,       .       166 

Sec.  II.  The  different  Stages  and  Formalities  of  Ordinary 
(or  Solemn)  Criminal  Trials  in  Ecclesiastical 
Courts — Formalities  of  Ecclesiastical  Trials  in 
the  United  States,        ......       170 

Art.     I.  The  Stages  of  Formal  Criminal  Trials,  from  the 
Beginning  or  Opening  of  the  Case  to  the  Plea 
exclusive — The  Principles   here  laid  down  ap- 
plied to  Trials  before  our  Commissions  of  In- 
vestigation, ........       171 

§  I,  On  tendering    to    the    Ecclesiastical   Judge    the 
written   Criminal   Charge,  also  in   the  United 
States — -De  Libelli   Oblatione — Form,  Necessity, 
Amendments  of  the  Bill  of  Complartit,       .         ,       172 
§  2.  Visitation  of  the  Corpus  Delicti,       .         .         .         .176 

§  3.  Citation  of  the  Accused,  as  made  also  in  the  Unit- 
ed States,  according  to  the  Instruction  of  the 
S.  C.  de  P.  F.,  July  20,  1878— Simple  and  Per- 
emptory, Public  and  Private  Citation — Neces- 
sity— Tenor — Execution — Effects,       .         .         .178 
§  4.  Contumacy,  also  in  the  United  States — True  and 
Presumptive  Contumacy — Legitimate  Excuses 
— Mode  of  Procedure,  also  with  us — Penalties,       188 
§  5.  Exceptions  —  Dilatory   and    Peremptory  —  How 
made  and  proved,  also  before  our  Commissions 
of  Investigation,  .         .         .         .         .         .         .196 

§  6.  Exceptions  against  the  Judge,  and  Members  of 
Commissions  of  Investigation  in  the  United 
States — Mode  of  Procedure — Arbitrators,  .       202 

§  7.  Of  Ecclesiastical  Counter-Suits  or  Charges,  also 

in  the  United  States — De  Mutuis  Feiitionibus,    .       213 

Art.  II.  Various  Stages  of  Regular  (or  Ordinary)  Canoni- 
cal Criminal  Trials,  from  the  Litis  Contestatio  to 
the  Final  Sentence  exclusive,      .        .        .        .217 


Contents.  45 1 

PAGE 

§  I.  Of  the  Plea  or  Contestation  of  the  Cause — Neces- 
sity of  an  informal  Contestation  in  Proceedings 
before  Commissions  of  Investigation  in  the 
United  States. 217 

§  2,  Positions  and  Articles,  also  in  the  United  States,       221 

§  3.  Oaths  administered  in  Ecclesiastical  Trials  to  the 
Litigants  themselves — y^uramenhcm  Malitiae, 
Caluniniae,  Veritatis,      .         .         .         .         .         .222 

§  4.  Of  Delays  which  occur  during  the  Trial,  also  in 
the  United  States — Legal  and  Conventional, 
Citatory  and  Deliberative,  Recusative  and  Pro- 
bative Delays — Judicial  Holidays  or  Feriae,       .       224 

§  5.  Order  to  be  observed  by  the  Ecclesiastical  Judge 
when,  in  the  hearing  of  the  same  Cause,  several 
Questions  come  up  for  Decision — De  Ordine 
Cognitionum — The  Complaint  of  Spoliation  has 
the  Right  of  Precedence,  also  with  us,       .         .       232 

§  6.  Examination  of  the  Accused,  also  in  the  United 
States — Is  the  Accused  bound  to  confess  his 
Guilt  when  he  is  interrogated  by  the  Judge,  or 
by  our  Commissions  of  Investigation?        .         .       240 

§  7.  Manner  of  submitting  the  Proofs  in  Ecclesiasti- 
cal Courts,  also  in  the  United  States — The 
Trial  Proper — Mode  of  conducting  the  Prose- 
cution and  the  Defence — Trial  before  Commis- 
sions of  Investigation  in  the  United  States,  .  244 
Art.  III.  Proceedings  in  Formal  Canonical  Trials,  and  also 
before  our  Commissions  of  Investigation,  in 
Criminal  Causes,  from  the  Final  Sentence  to 
the  End, 263 

§  I,  Nature  and  Division  of  Judicial  Sentences — In- 
terlocutory Sentences,  also  of  Commissions  of 
Investigation  in  the  United  States,     .         .         .       263 

§  2.  The  Final  Sentence — Absolutory,  Condemnatory, 
Declaratory — Conditions  required  on  the  Part 
of  the  Judge,  and  of  the  Sentence  itself,  also  in 
the  United  States,         .         .         .         .         .         .       270 

§  3.  Chief  Effects  of  the  Final  Sentence  on  the  Judge, 

the  Litigants,  the  Cause  decided — Res  judicata,       277 


452  Contents. 

O  T^  PAGE 

§  4.  Execution  of  the  Sentence — How  and  by  whom 

executed,  also  with  us, 280 

§  5.  Expenses  of  Ecclesiastical  Trials — By  whom  to 

be  paid,  also  in  the  United  States,      .         .         .       284 
Art.  IV.  Of  Appeals— Z>,?  Appellationibus,      .         .         .         .286 

§  I.  Mode  of  Procedure  in  Appeals — First  Stage  of 
Appeals — ApostoU — Second  Stage — The  Appeal 
brought  before  the  Judge  ad  guem — Third 
.  Stage — Trial  of  the  Appeal — Appeals  in  the 
United  States,  according  to  the  Instruction  of 
the  S.  C.  de  P.  F.,  July  20,  1878,  .         .         .286 

§  2.  Effects  of  Appeals,  also  in  the  United  States — 
Devolutive  and  Suspensive  Effects  of  Judicial 
and  Extrajudicial  Appeals — Remedy  against 
Attentates,  ........       300 

CHAPTER   IV. 

Of  Extraordinary  Criminal  Trials  in  Ecclesiasti- 
cal Courts,  also  in  the  United  States,  .         .       305 

Art.     I.  The   Criminal  Trial  for   Notorious  Crimes,  also 

with  us,        ....         .         .         .         .        305 

Art.   II.  Summary  Trials  in  Ecclesiastical  Courts,      .         .       310 

Art.  III.  Sentences  ex  informata  cofiscietiiia,  as  in  force  also 
in  the  United  States — No  Trial  required — What 
Penalties  are  imposable,  and  what  Crimes  pun- 
ishable ex  inf.  consc. — Duration  and  Lapse  of 
these  Sentences,  .......       315 

Art.  IV.  Criminal  Trial  of  Heretics — Special  Formalities,       334 

CHAPTER   V. 

Ecclesiastical  Civil  Trials,  ....       338 

Art.  I.  Of  the  Ordinary  Trial  in  Civil  Causes  of  the  Ec- 
clesiastical Forum — Formalities — Libellus — Ci- 
tation —  Contumacy — Litis  Contestatio — Excep- 
tions— Swearing  of  Witnesses  in  the  United 
States,  England,  and  Ireland — Civil  Trials  be- 
fore our  Commissions  of  Investigation,  .  .  339 
Art.   II.  Extraordinary     and     Summary    Trial    in     Civil 


Contents.  453 

PAGE 

Causes  of  the  Ecclesiastical  Forum,  also  in  the 
United  States,      .         .         .     '    .         .         .         .       347 
Art.  III.  Remedies  against    an    Unjust   Sentence    in  Civil 

Causes,         ........       349 

§  I.  Of  Appeals  and  the  Complaint  of  Nullity  in  Civil 

Causes  of  the  Ecclesiastical  Forum,   .         .         .       350 

§  2.  Of  Supplication  or  Petition  for  a  new  hearing  of 
the  Cause — New  hearing  before  the  Roman 
Congregations, 353 

§  3.  {a)  The  referring  of  a  Cause  by  an  Inferior  Judge 
to  the  Superior — De  Relationibus — {b)  Consulta- 
tions addressed  by  an  Inferior  Judge  to  his  Su- 
perior for  InfoVmation  to  guide  him  in  deciding 
a  Cause — Consultations  addressed  by  Bishops 
to  the  Holy  See,  .......       356 

§  4.  Of  Reinstatement,  as  granted  in  Spiritual  Causes, 

such  as  Ecclesiastical  Offices,  to  Churches,  etc.,       358 

CHAPTER    VI. 

Ecclesiastical  Civil  Trials  peculiar  to  Matrimonial 

Causes,  also  in  the  United  States,       .         .         .       368 

Art.  I.  Which  is  the  Competent  Forum  for  Matrimonial 
Causes  ? — Relation  of  Church  and  StaLe  in  This 
matter,  especially  in  the  United  States,      .  .        369 

Art.  II.  Organization  or  personnel  of  Ecclesiastical  Courts 
for  Matrimonial  Causes,  also  in  the  United 
States — The  Judge,  Defender  of  Marriage,  and 
Secretary,      .  .  .  .  .  .  .  .372 

Art.  III.  Form  of  Trial  to  be  followed  at  present,  in  Mat- 
rimonial Causes,  in  general — Can  the  Oath  be 
administered,  with  us,  to  the  Officials  of  the 
Courts,  and  to  the  Witnesses  ?    .         .  .       378 

Art.  IV.  Form  of  Trial  peculiar  to  Divorces  a  7nensa  et 
thoro  —  Causes  authorizing  such  Divorces — 
Adultery — Apostasy  and  Heresy — Bodily  Dan- 
ger— Incitement  to  Crime,  ....        382 

Art.  V.  Peculiar  Form  of  Trial  in  Matrimonial  Causes 
where  there  is  question  of  Dissolving-  a  Mar- 


454  Contents. 

PAGE 

riage,  once  contracted,  absolutely  or  quoad  vin- 
culum,  .  .         .         .         .         .         .         .         .       389 

§  I.  General  Features  of  the  Law  as  in  Force  at  the 
Present  Day — Defender  of  Marriage,  also  in. 
the  United  States — Synopsis  of  the  Const.  Z>ei 
Miseratione  of  Benedict  XIV.,      ....       389 

§  2.  Various  Stages  of  the  Trial — Regulations  of  the 
celebrated  Instruction  of  the  S.  C.  C.  of  Au- 
gust 22,  1840, 395 

§  3.  Formalities  to  be  observed  in  regard  to  the  An- 
nulment of  a  Marriage  which  is  ratum,  but  not 
yet  consummatum,  ......       400 

§  4.  Judicial  Proofs  in  Matrimonial  Causes  of  Nullity 
— Confession  or  Statements  of  •  the  Married 
Couple  —  Instruments  —  Witnesses  —  Corporal 
Inspection  by  Experts,         .....       403 

§  5.  What  Persons  are  qualified  by  the  Law  of  the 
Church  to  act  {a)  as  Plaintiffs,  and  {b)  as  Wit- 
nesses, in  Matrimonial  Causes,    ....       409 


APPENDIX. 


I. 

Instruction  of  the  Sacred  Congregation  De  Propaganda 
Fide,  issued  July  20,  1878,  on  the  Mode  of  Procedure 
to  be  followed  by  the  Bishops  of  the  United  States 
in  taking  cognizance  of  and  deciding  Criminal  and 
Disciplinary  Causes  of  Ecclesiastics  (Latin  text  with 
English  translation), 415 

II. 

Answer  of  the  Sacred  Congregation  De  Propaganda  Fide, 
concerning  certain  Questions,  proposed  by  Bishops  of 
the  United  States,  in  regard  to  the  Mode  of  Procedure 
to  be  followed  by  the  Bishops  of  the  United  States 
in  hearing  and  deciding  Criminal  and  Disciplinary 
Causes  of  Ecclesiastics  (Latin  text  together  with 
English  translation),       .......       422 


Contents.  455 

III. 

PAGE 

The  Canonical  Trial  adapted  to  the  Wants  of  the  Present 
Day  — Instruction  of  the  Sacred  Congregation  of 
Bishops  and  Regulars,  authorizing  Ordinaries  of 
Countries  not  subject  to  the  Propaganda  to  conduct 
Ecclesiastical  Trials,  without  observing  all  the  For- 
malities prescribed  by  the  Sacred  Canons,  .         .       424 

IV. 

Constitution  of  Pope  Benedict  XIV.,  prescribing  the  Form 
of  Trial  to  be  observed  in  those  Matrimonial  Causes, 
where  there  is  question  of  the  Validity  or  Nullity  of 
Marriages, 430 


Instruction  of  the  Sacred  Congregation  of  Council,  issued 
August  22,  1840,  laying  down  in  detail  the  Formalities 
of  the  Trial  in  Matrimonial  Causes,      ....       436 

VI. 

Instruction  of  the  Supreme  Congregation  of  the  Holy 
Office,  concerning  the  Mode  of  Procedure  where  there 
is  question  of  dissolving  a  Marriage  on  account  of 
Impotency, 441 

VII. 

Testimony  of  Singular  Witnesses  in  Cases  of  Solicitation,       443 

VIII. 

Is  the  administering  of  an  Oath  by  the  Ecclesiastical 
Superior,  as  such,  to  witnesses  or  other  parties,  for- 
bidden by  the  Civil  Law  in  England,  Ireland,  and  the 
United  States  ? 444 

IX. 

Force  of  the  Confession  of  the  Married  Couple,  concern- 
ing Clandestine  Marriages,  especially  in  the  United 
States, 445 


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